Media Matters for America v. Warren Paxton, Jr.

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 20, 2024 Decided May 30, 2025

No. 24-7059

MEDIA MATTERS FOR AMERICA AND ERIC HANANOKI,

APPELLEES

v.

WARREN KENNETH PAXTON, JR., IN HIS OFFICIAL CAPACITY AS

ATTORNEY GENERAL OF THE STATE OF TEXAS,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 1:24-cv-00147)

Lanora C. Pettit, Principal Deputy Solicitor General,

Office of the Attorney General for the State of Texas, argued

the cause for appellant. With her on the briefs were Ken

Paxton, Attorney General, Ryan S. Baasch, Chief, Consumer

Protection, Aaron L. Nielson, Solicitor General, Joseph N.

Mazzara, Assistant Solicitor General, and Coy Allen

Westbrook, Assistant Attorney General.

Aria C. Branch argued the cause for appellees. With her

on the brief were Abha Khanna, Christopher D. Dodge, Samuel

T. Ward-Packard, Theodore J. Boutrous, Jr., and Amer S.

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Ahmed.

Bruce D. Brown, Katie Townsend, Gabe Rottman, and

Grayson Clary were on the brief for amicus curiae Reporters

Committee for Freedom of the Press in support of appellees.

Before: HENDERSON and PAN, Circuit Judges, and

EDWARDS, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge

EDWARDS.

Opinion concurring in the judgment filed by Circuit Judge

HENDERSON.

EDWARDS, Senior Circuit Judge: This case involves a

lawsuit filed by Media Matters for America (“Media Matters”),

a non-profit media watchdog based in the District of Columbia,

and Eric Hananoki, a senior investigative reporter with Media

Matters (“Appellees”), against Warren Kenneth Paxton, Jr., in

his official capacity as the Attorney General of the State of

Texas. Appellees allege that the Texas Office of the Attorney

General, which is headed by Paxton, pursued a retaliatory

campaign against them because they published an unfavorable

article about X.com (“X”), a social media platform owned by

Elon Musk. Appellees’ article first appeared online on

November 16, 2023, and it reported that corporate

advertisements on X appeared adjacent to antisemitic posts,

and that Musk had endorsed an antisemitic conspiracy theory.

Musk responded that the article was a “‘fraudulent attack on

[the] company,’ and he promised to file ‘a thermonuclear

lawsuit against Media Matters[.]’” Media Matters for Am. v.

Paxton, 732 F. Supp. 3d 1, 8 (D.D.C. 2024) (alterations in

original).

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On November 20, 2023, X filed suit in the Northern

District of Texas against Media Matters and Hananoki. On the

same day that X filed suit, the Texas Office of the Attorney

General launched an investigation into Media Matters for

potential violations of the Texas Deceptive Trade Practices

Act, TEX. BUS. & COM. CODE § 17.01 et seq. (Vernon 2023).

In a press release and a subsequent interview, Paxton called

Media Matters a “radical anti-free speech organization” and

encouraged other state attorneys general to review Media

Matters’ conduct. Joint Appendix (“J.A.”) 53, 189. The Texas

Office of the Attorney General also issued a sweeping civil

investigative demand (“CID”), requiring Media Matters to

produce a slew of records. The scope of the CID includes all

Media Matters’ documents and communications dating back to

January 1, 2022, regarding X CEO Linda Yaccarino or Musk’s

purchase of X; all Media Matters’ communications with

employees and representatives of X and ten other entities in

November 2023; documents concerning Media Matters’

internal operations, structure, expenditures, and reporting

process; and sources of funding for reporting on X. Paxton sent

the CID to Media Matters via FedEx and then arranged for a

process server to deliver it to Appellees’ attorneys in

Washington, D.C.

Following receipt of the CID, Appellees filed suit against

Paxton, in his official capacity, pursuant to 42 U.S.C. § 1983,

alleging unlawful retaliation in violation of the First

Amendment. Appellees claimed that Paxton’s investigation

and the issuance of the CID were in furtherance of an unlawful

campaign of retaliation for their coverage of X and Elon Musk.

They also alleged that Paxton’s retaliatory actions have caused

substantial adverse effects to their newsgathering and reporting

activities, particularly with respect to online political

extremism. They sought a preliminary injunction to bar

enforcement of the CID.

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The District Court granted Appellees’ motion for a

preliminary injunction and denied Paxton’s motion to dismiss

for improper venue and a lack of personal jurisdiction and

subject matter jurisdiction. See Media Matters, 732 F. Supp. 3d

at 8, 30. The court found that the investigation and CID

constituted cognizable injuries sufficient to establish

Appellees’ standing. See id. at 24-27. On the merits, the court

concluded that Appellees satisfied the requisite factors for a

preliminary injunction. Id. at 8, 27-30. On appeal, Paxton

argues that he is not subject to personal jurisdiction in the

District of Columbia, that the District of Columbia is an

improper venue for the action, and that Appellees have not

raised a justiciable claim. He also contends that the District

Court abused its discretion in issuing a preliminary injunction

because Appellees failed to satisfy all of the elements of the

requisite test. For the reasons explained below, we affirm the

judgment of the District Court.

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.

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I. BACKGROUND

A. Statutory Background

The Texas Deceptive Trade Practices Act (“Act”)

“protect[s] consumers against false, misleading, and deceptive

business practices, unconscionable actions, and breaches of

warranty.” TEX. BUS. & COM. CODE § 17.44(a). To that end,

the Act proscribes “[f]alse, misleading, or deceptive acts or

practices in the conduct of any trade or commerce,” including

“disparaging the goods, services, or business of another by

false or misleading representation of facts.” Id. § 17.46(a),

(b)(8).

The Act also authorizes the Texas Office of the Attorney

General (“Office”) to investigate and enforce violations of its

provisions. See PPG Indus., Inc. v. JMB/Hous. Ctrs. Partners

Ltd. P’ship, 146 S.W.3d 79, 84 (Tex. 2004); State v. Lowry,

802 S.W.2d 669, 672 n.4 (Tex. 1991). Specifically, the Office’s

consumer protection division may bring actions for injunctive

relief and seek civil penalties of up to $10,000 per violation

against persons believed to have violated the Act. TEX. BUS. &

COM. CODE § 17.47(a), (c)(1). That division may also issue a

CID if it “believes that any person may be in possession,

custody, or control of … documentary material relevant to the

subject matter of an investigation of a possible violation of” the

Act. Id. § 17.61(a).

As relevant here, the recipient of a CID may file a petition

in the Texas courts to modify or set aside a CID. Id. § 17.61(g).

Otherwise, the recipient may refuse to comply with the CID

and the consumer protection division may then bring an

enforcement action. Id. § 17.62(b). With respect to penalties, a

CID recipient’s failure to comply with a final court order from

the enforcement action is punishable by contempt. Id.

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§ 17.62(c). A recipient who, with intent to avoid compliance

with the CID, withholds or destroys any documentary material

may also be charged with a misdemeanor, which is punishable

by a fine or confinement. Id. § 17.62(a).

B. Factual Background

Media Matters is a non-profit research and information

organization whose self-proclaimed mission is to “monitor[],

analyz[e], and correct[] conservative misinformation in U.S.

media.” J.A. 146. It is incorporated under the laws of the

District of Columbia (“District” or “D.C.”), has its principal

place of business in the District, and maintains its physical

records in the District. Media Matters has no significant ties to

the State of Texas.

On November 16, 2023, Media Matters published an article

written by Hananoki titled, “As Musk endorses antisemitic

conspiracy theory, X has been placing ads for Apple, Bravo,

IBM, Oracle, and Xfinity next to pro-Nazi content.” J.A. 156.

This article was part of Hananoki’s broader work to document

political extremism in the public square, including on social

media platforms. The article reported that corporate

advertisements on X appeared beside antisemitic content from

X users, and it showed images of antisemitic messages

alongside advertisements. In addition, the article claimed that

Musk had endorsed an “antisemitic conspiracy theory” that

Jewish people are attempting to “promote ‘hatred against

whites’” and “‘flood[] the[] country’ with ‘hordes of

minorities.’” J.A. 157 (alterations in original).

Musk quickly responded. On November 18, he posted on

his X account that X Corp. intended to file “a thermonuclear

lawsuit against Media Matters and ALL those who colluded in

this fraudulent attack” against the company. J.A. 23, 158. One

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day later, Stephen Miller, who has been an advisor to President

Donald Trump during both of his terms in office, posted on X

that fraud is a civil and criminal violation and that there are

numerous conservative state attorneys general. Musk then

responded that Miller’s post was interesting, and Andrew

Bailey, the Attorney General for the State of Missouri, later

replied that his team was looking into the matter.

On November 20, 2023, X Corp. filed suit against

Appellees in a federal district court in Texas. And on the same

day, the Office issued a press release announcing the launch of

an investigation into Media Matters for potential fraudulent

activity in violation of the Act. The press release described

Paxton as being “extremely troubled by the allegations that

Media Matters, a radical anti-free speech organization,

fraudulently manipulated data on X.com.” J.A. 53. It also noted

that Paxton had stated that the Office wanted 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.” Id.

Soon after, the Office’s consumer protection division

issued a CID to Media Matters. It sought a wide-ranging set of

records covering, inter alia, (1) Media Matters’ sources of

income and expenditures in Texas; (2) its sources of funding

for its operations involving X research or publications; (3) its

communications regarding Musk’s acquisition of X and the

November 16 article; and (4) its external communications with

major corporate advertisers and X employees. Media Matters

first received the CID, via FedEx delivery, at its office in the

District. Paxton also dispatched a process server to the District

to deliver the CID, resulting in the process server delivering it

to Media Matters’ local counsel.

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Around the same time, Paxton participated in several

interviews about the Office’s investigation. In an interview on

Newsmax, he remarked that the Office discovered Media

Matters’ activities through Musk’s lawsuit and the resulting

reports of the dispute. Similarly, in an interview with CNBC,

he discussed the Office’s interest in Media Matters’ conduct,

the goal of the Office’s investigation, and Media Matters’

potential liability under Texas law if X Corp.’s allegation that

Media Matters manipulated data proved true. And in an

interview on “The Benny Show,” Paxton urged other state

attorneys general to review and investigate Media Matters’

conduct.

C. Procedural History

In January 2024, Appellees filed an action in the District

Court against Paxton in his official capacity as the Attorney

General of Texas. They initially sued Paxton in the U.S.

District Court for the District of Maryland, but later voluntarily

dismissed the action and refiled in the District Court. As

relevant here, Appellees assert a First Amendment retaliation

claim under 42 U.S.C. § 1983, alleging that Paxton’s

investigation and service of an intrusive CID was in retaliation

for the exercise of their First Amendment rights. They claim

that Paxton’s retaliatory actions have chilled and continue to

chill their investigative, newsgathering, and reporting

activities.

Appellees subsequently moved for a preliminary

injunction, seeking to enjoin Paxton from enforcing the CID or

engaging in similar retaliatory conduct. They also submitted

evidence of adverse effects from the allegedly retaliatory

investigation, such as sworn affidavits recounting the self-

censorship of reporters on political extremism topics,

disruptions to their normal editorial practices, and reduced

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collaboration with other journalists and associations. Paxton

then moved to dismiss the action for a lack of personal

jurisdiction and subject matter jurisdiction, and for improper

venue. Paxton did not dispute that the investigation and CID

were retaliatory; and Paxton did not contest Appellees’ claim

that a retaliatory investigation raises a cognizable cause of

action.

Ultimately, the District Court granted Appellees’ motion

for a preliminary injunction and denied Paxton’s motion to

dismiss. See Media Matters, 732 F. Supp. 3d at 30. The District

Court first held that Paxton was subject to specific personal

jurisdiction in the District. Id. at 18. The court found that

Paxton was a “person” under the D.C. long-arm statute for

purposes of an official-capacity suit for injunctive relief, and

that jurisdiction was permissible under subsections (a)(1) and

(a)(3) of the long-arm statute. Id. at 13-23. It explained that,

inter alia, Paxton invoked the benefits and protections of the

District’s laws by hiring a process server to deliver the CID in

the District, and that the CID established a future course of

dealing with Media Matters. Id. at 18-20.

The District Court additionally concluded that the

evidence offered by Appellees was sufficient to show

cognizable injuries, i.e., Paxton’s retaliatory campaign had

objectively discernable adverse effects on Appellees’ news

operations and journalistic mission. Id. at 24-27.

The District Court further determined that venue was

proper in the District because physical service of the CID in

furtherance of Paxton’s retaliatory campaign against Appellees

and the ensuing adverse effects on Appellees’ rights of free

speech occurred in the District. Id. at 27.

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The District Court concluded that a preliminary injunction

was warranted because all factors of the Winter v. Natural

Resources Defense Council, Inc., 555 U.S. 7 (2008), test

weighed in Appellees’ favor. Id. at 27-30.

As to the likelihood of success on the merits, the District

Court found that, on the record before it, Appellees have

proven each element of their First Amendment retaliation

claim. Id. at 27. The court reasoned that Appellees’ reporting

on matters of public concern were core First Amendment

activities, that Paxton’s campaign against Media Matters with

administrative and judicial intrusions into the newsgathering

process were retaliatory actions sufficient to deter protected

speech, that Paxton launched his retaliatory campaign against

Appellees because of their pursuit of protected activities, and

that Appellees presented sufficient evidence of Paxton’s

retaliatory motive. Id. at 27-29. With respect to irreparable

harm, the District Court explained that Paxton’s campaign of

retaliation impaired Appellees’ First Amendment interests by,

inter alia, intruding into the workings of their media operation,

causing them to self-censor their reporting, and restricting

communications with their sources and other journalists. Id. at

29. For the balance of equities and the public interest, the court

determined that those factors favored Appellees due to the

strong public interest in the exercise of free speech rights and

Paxton’s failure to identify any harm to his interests from an

injunction. Id. at 29-30.

Paxton now appeals the District Court’s judgment and

grant of a preliminary injunction in favor of Appellees.

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II. ANALYSIS

A. Standard of Review

“A preliminary injunction is an ‘extraordinary remedy

never awarded as of right.’’’ Alpine Sec. Corp. v. Fin. Indus.

Regul. Auth., 121 F.4th 1314, 1324 (D.C. Cir. 2024) (quoting

Winter, 555 U.S. at 24). Rather, to obtain a preliminary

injunction, a party “must establish that he is likely to succeed

on the merits, that he is likely to suffer irreparable harm in the

absence of preliminary relief, that the balance of equities tips

in his favor, and that an injunction is in the public interest.’’

Huisha-Huisha v. Mayorkas, 27 F.4th 718, 727 (D.C. Cir.

2022) (quoting Winter, 555 U.S. at 20). We review the District

Court’s weighing of those factors for abuse of discretion, its

legal conclusions de novo, and factual findings for clear error.

Alpine Sec., 121 F.4th at 1324; Huisha-Huisha, 27 F.4th at 726-

27. We review Article III standing questions and the District

Court’s assertion of personal jurisdiction de novo. Iowaska

Church of Healing v. Werfel, 105 F.4th 402, 411-12 (D.C. Cir.

2024); Shatsky v. Palestine Liberation Org., 955 F.3d 1016,

1036 (D.C. Cir. 2020).

B. Paxton Is Subject to Personal Jurisdiction in D.C. Courts

As a threshold matter, Paxton argues that the District Court

lacks personal jurisdiction over him in his official capacity as

the Attorney General of Texas. We disagree.

There are two bases for a court to exercise personal

jurisdiction over a defendant: ‘‘general or all-purpose

jurisdiction, and specific or conduct-linked jurisdiction.”

Shatsky, 955 F.3d at 1036 (citation omitted). In its exercise of

general jurisdiction, a court may ‘‘hear any and all claims

against the defendant.” Urquhart-Bradley v. Mobley, 964 F.3d

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36, 43 (D.C. Cir. 2020) (internal quotation marks and citation

omitted). And “[w]here the defendant is an individual, ‘the

paradigm forum for the exercise of general jurisdiction is the

individual’s domicile[.]’’’ Id. (alteration in original) (quoting

Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S.

915, 924 (2011)). General jurisdiction is not at issue here

because Paxton resides and works in Texas. Appellees also do

not advance such a claim.

Specific jurisdiction, however, demands ‘‘a relationship

among the defendant, the forum, and the litigation.” Shatsky,

955 F.3d at 1036 (citation omitted). To establish specific

personal jurisdiction over a defendant, we must determine that

(1) jurisdiction is authorized under the District’s long-arm

statute, and (2) that such an exercise of jurisdiction comports

with the Due Process Clause. Urquhart-Bradley, 964 F.3d at

44. Both prongs are satisfied here.

1. Paxton is a “person” under the D.C. long-arm statute

In pertinent part, the D.C. long-arm statute authorizes D.C.

courts to “exercise personal jurisdiction over a person, who

acts directly or by an agent, as to a claim for relief arising from

the person’s” transacting any business in the District. D.C.

CODE § 13-423(a)(1). And it defines a “person” as including

“an individual … whether or not a citizen or domiciliary of the

District of Columbia.” Id. § 13-421. At bottom, the plain

meaning of the term “individual” clearly encompasses Paxton,

who is a single human being. See Individual, THE OXFORD

ENGLISH DICTIONARY, https://perma.cc/B6AY-8L6Y (last

visited Apr. 23, 2025) (“A single human being, as distinct from

a particular group, or from society in general.”). Accordingly,

he is a “person” within the meaning of the statute.

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Paxton contends that he is not a “person” because

Appellees sued him in his official capacity. In his view, it is

well established that a state is not a “person” under the statute,

and, therefore, a state official sued in his official capacity is

likewise not a “person” because the case functionally remains

a suit against the state. We disagree.

First, Ex parte Young, 209 U.S. 123 (1908), and its progeny

permit actions for declaratory and injunctive relief against state

officials in their official capacities, notwithstanding sovereign

immunity under the Eleventh Amendment. Reed v. Goertz, 143

S. Ct. 955, 960 (2023). Under Ex parte Young, such suits for

prospective relief are against the official rather than the state.

Vann v. Kempthorne, 534 F.3d 741, 749-50 (D.C. Cir. 2008).

This is so because if a state official acts unconstitutionally, he

“comes into conflict with the superior authority of [the]

Constitution, and he is in that case stripped of his official or

representative character and is subjected in his person to the

consequences of his individual conduct.” Ex parte Young, 209

U.S. at 159-60 (allowing a party to pursue an injunction against

a state attorney general to bar enforcement of a state statute).

In Will v. Michigan Department of State Police, the

Supreme Court noted that state officials sued in their official

capacities for injunctive relief, rather than monetary relief, are

“person[s]” under § 1983 because official-capacity suits for

prospective relief are not actions against the state. 491 U.S. 58,

71 n.10 (1989); see also Hedgepeth ex rel. Hedgepeth v. Wash.

Metro. Area Transit Auth., 386 F.3d 1148, 1152-53 n.3 (D.C.

Cir. 2004) (relying on Will to find that the General Manager of

the Washington Metropolitan Area Transit Authority was a

person under § 1983). The Court further observed that such a

distinction was “commonplace in sovereign immunity

doctrine … and would not have been foreign to the 19th-

14

century Congress that enacted § 1983.” Will, 491 U.S. at 71

n.10 (citation omitted).

The principles from Will control our application of the D.C.

long-arm statute. It is safe to assume that Congress was aware

of sovereign immunity precedent when it enacted the long-arm

statute in 1970 – that is, that official-capacity actions for

injunctive relief are treated as actions against an individual

officer instead of the state. See Merck & Co., Inc. v. Reynolds,

559 U.S. 633, 648 (2010) (“We normally assume that, when

Congress enacts statutes, it is aware of relevant judicial

precedent.”). In this case, with respect to their First

Amendment retaliation claim, Appellees are suing Paxton in

his official capacity for injunctive relief for allegedly

unconstitutional conduct. Will makes abundantly clear that

such an action against a state official for injunctive relief is not

an action against the state.

Second, we are also assured that Appellees’ request for

prospective relief is not an attempt to evade sovereign

immunity and effectively bring an action against a state. To be

sure, the Supreme Court has established that the Ex parte

Young doctrine cannot be invoked to obtain “injunction[s]

requiring the payment of funds from the State’s treasury” or

“order[s] for specific performance of a State’s contract.” Va.

Off. for Prot. & Advoc. v. Stewart, 563 U.S. 247, 256-57 (2011)

(citations omitted). Neither circumstance is present here.

Indeed, the complaint and preliminary injunction motion

plainly show that Appellees are primarily seeking to enjoin

enforcement of the CID as part of Paxton’s continued

campaign of retaliation.

Third, the main case upon which Paxton relies, United

States v. Ferrara, 54 F.3d 825 (D.C. Cir. 1995), does not

compel a different result. There, a New Mexico state official

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initiated disciplinary action against an attorney licensed in New

Mexico based on his employment activities in the District, and

the attorney sought to enjoin the disciplinary proceedings.

Ferrara, 54 F.3d at 826-27. We held that the state official was

not subject to personal jurisdiction in the District due to her

lack of minimum contacts with the District. Id. at 828-31. And

while we found that D.C. courts would not have jurisdiction

over the State of New Mexico because a sovereign was not a

“person” under the long-arm statute, we expressly declined to

“determine whether a State official sued in his official capacity

should be treated as if he were the State for jurisdictional

purposes.” Id. at 831-32. Importantly, we were merely

responding to the government’s alternative argument that the

official’s minimum contacts with the forum were unnecessary

for personal jurisdiction since (1) the State was not a “person”

under the Due Process Clause and not entitled to its protection,

and (2) state officials should be treated as the State. See id.

Ultimately, there was no need to reach that Due Process Clause

issue due to our conclusion that D.C. courts could not exercise

jurisdiction over New Mexico because a state was not a

“person” under the long-arm statute. See id. at 831. As such,

Ferrara is of no help to Paxton.

In short, nothing precludes us from considering Paxton –

even in his official capacity – as a “person” under the long-arm

statute.

2. Jurisdiction is permissible under subsection (a)(1) of

the D.C. long-arm statute

Turning to subsection (a)(1), we find that jurisdiction over

Paxton is proper under that subsection, and that such an

exercise of jurisdiction comports with the Due Process Clause.

While Appellees also invoke subsections (a)(3) and (a)(4) of

the long-arm statute as additional grounds for personal

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jurisdiction, we have no reason to pursue our analysis beyond

subsection (a)(1).

As noted above, D.C. courts may exercise jurisdiction over

any nonresident who “transact[s] any business in the District,”

directly or by an agent. D.C. CODE § 13-423(a)(1). It is well

established that this provision “embraces those contractual

activities of a nonresident defendant which cause a

consequence here,” and that “a nonresident defendant need not

have been physically present in the District.” Mouzavires v.

Baxter, 434 A.2d 988, 992 (D.C. 1981) (citations omitted).

Mouzavires emphasizes the breadth of the “transacting any

business” provision and explains that the provision “embraces”

contractual activities which cause a consequence in the forum

state. Id. Importantly, it does not limit the broad provision to

solely contractual activities. Rather, as Mouzavires explains,

the focus is on the in-forum consequences that flow from the

nonresident’s activities. In addition, “a single act may be

sufficient to constitute transacting business … so long as that

contact is voluntary and deliberate, rather than fortuitous.”

Jackson v. Loews Wash. Cinemas, Inc., 944 A.2d 1088, 1093

(D.C. 2008) (internal quotation marks and citation omitted).

Nonetheless, “a connection [to the District] that is related to the

claim in suit” is required. Forras v. Rauf, 812 F.3d 1102, 1106

(D.C. Cir. 2016) (cleaned up) (citations omitted).

Once we determine Appellees’ claims fall under subsection

(a)(1), which authorizes jurisdiction to the full extent allowed

by the Due Process Clause, the statutory and constitutional

inquiries merge. Mills v. Anadolu Agency NA, Inc., 105 F.4th

388, 395-96 (D.C. Cir. 2024). Thus, the overarching question

is whether a plaintiff’s claims ‘‘arise[] out of or relate[] to’’ his

contacts with the District. Id. at 396 (citation omitted). Put

simply, due process is satisfied “if there are minimum contacts

between the defendant and the forum such that the defendant

17

should reasonably anticipate being haled into court there.’’

Urquhart-Bradley, 964 F.3d at 44 (cleaned up) (citation

omitted). In other words, the defendant must have

“purposefully availed himself of the privilege of conducting

activities within the forum State, thus invoking the benefits and

protections of its laws.” Thompson Hine, LLP v. Taieb, 734

F.3d 1187, 1189 (D.C. Cir. 2013) (cleaned up) (citation

omitted). Moreover, “minimum contacts exist where a

defendant takes ‘intentional, and allegedly tortious, actions’

‘expressly aimed’ at a jurisdiction.” Urquhart-Bradley, 964

F.3d at 48 (quoting Calder v. Jones, 465 U.S. 783, 789 (1984)).

“Once it has been decided that a defendant purposefully

established minimum contacts within the forum State, these

contacts may be considered in light of other factors to

determine whether the assertion of personal jurisdiction would

comport with ‘fair play and substantial justice.’” Burger King

Corp. v. Rudzewicz, 471 U.S. 462, 476 (1985) (citation

omitted) (describing factors).

Here, personal jurisdiction over Paxton is proper because

he hired both FedEx and a process server to deliver his CID to

Media Matters in the District, and Appellees’ First Amendment

retaliation claim arises from Paxton’s conduct. Furthermore,

Paxton’s actions were expressly aimed at Media Matters in the

District – thereby establishing minimum contacts with the

District.

To start, the Supreme Court’s decision in Calder is

instructive on the issue. There, the Court held that a California

court had jurisdiction over Florida defendants in a libel suit

arising from the defendants’ publication of an article about a

California celebrity. Calder, 465 U.S. at 784-86. In particular,

the Court explained that the “focal point” of the libelous story

– i.e., the California activities of a California resident and

drawn from California sources – and of the harm suffered – i.e.,

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damage to the plaintiff’s reputation and her emotional distress

– was California. Id. at 788-89. It also observed that copies of

the national newspaper were sold in California. Id. at 784-85.

As such, the Court found that jurisdiction was appropriate due

to the “effects” of the defendants’ Florida-based conduct in

California. Id. at 789. And it stressed that the defendants should

have anticipated being summoned into California courts

because they wrote an article knowing it “would have a

potentially devastating impact upon” the plaintiff and knowing

“that the brunt of that injury would be felt by” the plaintiff in

California, which is where she worked and the newspaper was

circulated. Id. at 789-90.

Since Calder, the Court has clarified the scope of the

“effects” test. In Walden v. Fiore, the Court explained that the

inquiry focuses on the contacts that the defendant creates with

the forum state, and not just with the plaintiff. 571 U.S. 277,

287, 291 (2014). Specifically, it noted:

The crux of Calder was that the reputation-based

“effects” of the alleged libel connected the defendants

to California, not just to the plaintiff. The strength of

that connection was largely a function of the nature of

the libel tort …. [T]he reputational injury caused by

the defendants’ story would not have occurred but for

the fact that the defendants wrote an article for

publication in California that was read by a large

number of California citizens. Indeed, because

publication to third persons is a necessary element of

libel, … the defendants’ intentional tort actually

occurred in California …. In this way, the “effects”

caused by the defendants’ article—i.e., the injury to

the plaintiff’s reputation in the estimation of the

California public—connected the defendants’

conduct to California, not just to a plaintiff who lived

19

there. That connection, combined with the various

facts that gave the article a California focus, sufficed

to authorize the California court’s exercise of

jurisdiction.

Id. at 287-88 (citations omitted).

In this case, the District is the focal point of Paxton’s

allegedly retaliatory investigation and CID, and of the harm

suffered by Appellees. Paxton is investigating the publication

activities of a District-based organization, and he intentionally

caused the delivery of the CID to the District via FedEx and a

process server. Further, Appellees claim that they are suffering

substantial adverse effects on their First Amendment rights

from the mailing and service of the CID in the District,

including self-censorship on articles about Musk and political

extremism.

As noted above, Paxton has failed to contest that his

campaign against Appellees is retaliatory. And the District

Court found sufficient evidence of Paxton’s retaliatory animus

and of the profound adverse effects from the CID. This alleged

harm has also plausibly impacted other D.C. residents, who are

deprived of Appellees’ reporting. See Def. Distributed v.

Grewal, 971 F.3d 485, 495 n.9 (5th Cir. 2020) (“Censorship,

like libel, is damaging not just to the speaker, but to

surrounding audiences. And like libel, censorship’s harm

occurs not just where it originates, but where it arrives.”).

Indeed, as irony would have it, Paxton has readily

acknowledged in a different litigation that a state’s attempt to

silence a company through the issuance and threat of

compelling a response to a CID “harms everyone,” including

“those seeking information in order to evaluate various

viewpoints in [a] public policy debate.” Br. of Texas et. al. as

20

Amici Curiae in Support of Plaintiff’s Motion for Preliminary

Injunction [hereinafter Br. of Texas] at 6, Exxon Mobil Corp.

v. Healey, No. 4:16-CV-00469 (N.D. Tex. filed Sept. 8, 2016),

J.A. 77.

The point is that the censorship-based effects of the alleged

retaliatory investigation has connected Paxton to the District,

rather than to just Appellees. See Def. Distributed, 971 F.3d at

495-96 (determining that Texas courts had jurisdiction over the

New Jersey Attorney General based on a cease-and-desist letter

he sent to a Texas business because of the alleged adverse

effects on its First Amendment rights, which also affected

Texans’ access to the company’s materials).

In sum, Appellees claim that Paxton intentionally reached

into the District (via FedEx and a process server) to retaliate

against them for exercising their First Amendment rights, and

they allege that he intended for the CID to cause adverse effects

on their reporting. These acts of retaliation are the foundation

of Appellees’ suit. Paxton should have reasonably anticipated

being summoned into court in the District because he knew that

the CID and investigation would “have a potentially

devastating impact” on Appellees and others who benefit from

their reporting, and “knew that the brunt of [the] injury would

be felt by” Appellees in the District. Calder, 465 U.S. at 789-

90.

Moreover, Paxton’s physical entry into the District, via the

process server and mailing of the CID, is an additional relevant

contact that supports jurisdiction. See Walden, 571 U.S. at 285

(“[P]hysical entry into the State—either by the defendant in

person or through an agent, goods, mail, or some other

means—is certainly a relevant contact.” (emphases added)).

Taken together, we hold that Paxton has the requisite minimum

contacts with the District to properly subject him to the

21

jurisdiction of the D.C. courts.

3. Paxton’s arguments to the contrary lack merit

Paxton contends that subsection (a)(1) does not apply

because hiring a process server does not constitute transacting

business in the District. We reject Paxton’s argument. As

discussed above, the D.C. Court of Appeals in Mouzavires

explained that the “transacting any business” provision in

(a)(1) “embraces those contractual activities of a nonresident

defendant which cause a consequence” in the District of

Columbia. 434 A.2d at 992. Mouzavires does not limit the

provision to contractual activities. It merely explains that such

activities fall within the broad scope of subsection (a)(1) when

they cause a consequence in the District. In this case, Paxton

purposefully dispatched FedEx and a process server to the

District to deliver the CID to Media Matters, which caused

adverse effects on Media Matters in the District and obligated

the organization to produce voluminous records absent a court

order. See TEX. BUS. & COM. CODE § 17.61(h). Those are

obvious and significant consequences.

Paxton also asserts that mail and wire communications,

including transmitting formal legal documents, do not alone

provide a basis for jurisdiction under subsection (a)(1). And he

claims that his use of the mail and related communications do

not constitute purposeful availment of the District’s benefits

and protections. These arguments, however, ignore

Mouzavires and Calder, which are not merely based on a

defendant’s entry into the forum state via mail and wire

communications, but on the consequences and effects of the

defendant’s conduct. Tellingly, Paxton also minimizes the

point that he dispatched a process server into the District to

deliver the CID.

22

C. Appellees’ Complaint Raises a Justiciable Action

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.

“Article III confines the federal judicial power to the

resolution of ‘Cases’ and ‘Controversies.’’’ TransUnion LLC

v. Ramirez, 594 U.S. 413, 423 (2021). Essentially, a plaintiff

needs a “personal stake” or “standing” in the outcome of the

case for a case or controversy to exist under Article III. Id.

(citation omitted). Ripeness, in turn, is a doctrine “drawn both

from Article III limitations on judicial power and from

prudential reasons for refusing to exercise jurisdiction.” Saline

Parents v. Garland, 88 F.4th 298, 306 (D.C. Cir. 2023)

(citation omitted). It “precludes premature adjudication of

‘abstract disagreements’ and instead reserves judicial power

for resolution of concrete and ‘fully crystalized’ disputes.”

VanderKam v. VanderKam, 776 F.3d 883, 888 (D.C. Cir. 2015)

(citation omitted). The constitutional dimension of ripeness “is

subsumed into the Article III requirement of standing,” POET

Biorefining, LLC v. EPA, 970 F.3d 392, 403 (D.C. Cir. 2020),

because the doctrines “originate from the same Article III

23

limitation,” Susan B. Anthony List v. Driehaus, 573 U.S. 149,

157 n.5 (2014) (internal quotation marks and citation omitted).

To establish Article III standing, a plaintiff “must show (i)

that he suffered an injury in fact that is concrete, particularized,

and actual or imminent; (ii) that the injury was likely caused

by the defendant; and (iii) that the injury would likely be

redressed by judicial relief.” TransUnion, 594 U.S. at 423

(citation omitted).

Appellees clearly have standing to pursue this action. They

are the targeted victims of a campaign of retaliation; the harms

inflicted on Appellees have been caused by Paxton and the

Texas Office of the Attorney General that he directs; and the

injuries that are the subject of Appellees’ complaint will be

redressed by the injunction that they seek. In addition, the case

is ripe for review because the campaign of retaliation is

ongoing. Moreover, Paxton’s challenge to Appellees’

complaint is not really focused on standing and ripeness.

Rather, Paxton has focused on challenging the efficacy of

Appellees’ cause of action. Paxton’s principal claim is that

“this case is not justiciable [because] … federal courts do not

hear pre-enforcement challenges to non-self-executing CIDs.”

Br. for Appellant 11. The problem with Paxton’s argument is

that it misconstrues Appellees’ complaint and thus ignores the

body of law that prohibits government officials from subjecting

individuals to retaliatory actions for exercising their rights of

free speech.

The Supreme Court, in a unanimous opinion, has explained

the applicable law as follows:

[A]s a general matter, the First Amendment prohibits

government officials from subjecting individuals to

24

retaliatory actions after the fact for having engaged in

protected speech.

Hous. Cmty. Coll. Sys., 595 U.S. at 474. Several circuits have

amplified the framework for First Amendment retaliation

claims. See, e.g., Boquist, 32 F.4th at 774; Rudd v. City of

Norton Shores, 977 F.3d 503, 512 (6th Cir. 2020).

Tellingly, Paxton has not offered any argument to dispute

that the investigation was retaliatory. Nor has he claimed, until

this appeal, that a retaliatory investigation is not a cognizable

cause of action. See Oral Arg. Tr. at 20-22. Regardless, the

District Court found ample evidence of Paxton’s retaliatory

motive including: (1) the Office’s press release establishing

that Paxton opened the investigation in response to Media

Matters’ reporting; (2) his description of Media Maters as a

“radical anti-free speech” and “radical left-wing organization”;

and (3) his encouragement of other state attorneys general to

investigate Media Matters. J.A. 817-18. And Paxton elsewhere

concedes that a state attorney general’s subpoena power can be

abused to target viewpoints, chill speech, and silence and

intimidate organizations. See Br. of Texas at 3-9, J.A. 74-80.

Appellees’ allegation that they are targets of a retaliatory

government investigation is a claim regarding concrete harm.

And this harm is distinct from any resulting chilling effects. In

distinguishing between “good faith” and “bad faith”

investigations, this court has explained that “all investigative

techniques are subject to abuse and can conceivably be used to

oppress citizens and groups,” and that bad faith use of

investigative techniques can abridge journalists’ First

Amendment rights. Reps. Comm. for Freedom of the Press v.

AT&T, 593 F.2d 1030, 1064 (D.C. Cir. 1978). In addition, we

have recognized that the First Amendment “protect[s]

[information-gathering] activities from official harassment,”

25

and that “official harassment [of the press] places a special

burden on information-gathering, for in such cases the

ultimate, though tacit, design is to obstruct rather than to

investigate, and the official action is proscriptive rather than

observatory in character.” Id.

A number of our sister circuits have issued judgments

making it clear that First Amendment retaliation claims are

justiciable. See, e.g., Anderson v. Davila, 125 F.3d 148, 159-

60 (3d Cir. 1997) (describing the government’s retaliatory

surveillance of the plaintiff as a “specific present harm”);

Dixon v. Brown, 38 F.3d 379, 379 (8th Cir. 1994) (“Because

the retaliatory filing of a disciplinary charge strikes at the heart

of an inmate’s constitutional right to seek redress of

grievances, the injury to this right inheres in the retaliatory

conduct itself.”); Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th

Cir. 1999) (“In a retaliation claim such as this, however, the

harm suffered is the adverse consequences which flow from the

inmate’s constitutionally protected action. Instead of being

denied access to the courts, the prisoner is penalized for

actually exercising that right.”); Bennett v. Hendrix, 423 F.3d

1247, 1254-56 (11th Cir. 2005) (noting that a plaintiff’s

allegations that a defendant’s retaliatory acts adversely

affected him “is an injury sufficiently adverse to give rise to

Article III standing”); Boquist, 32 F.4th at 780-85 (finding that

the plaintiff plausibly alleged a First Amendment retaliation

claim); Rudd, 977 F.3d at 513-17 (same).

As the court enunciated in Bennett: “A plaintiff suffers

adverse action if the defendant’s allegedly retaliatory conduct

would likely deter a person of ordinary firmness from the

exercise of First Amendment rights.” 423 F.3d at 1254. “The

objective ‘ordinary firmness’ test requires plaintiffs to allege

that the retaliatory acts of the defendants adversely affected

them.” Id. (citation omitted). Appellees have made this

26

showing. In particular, they have alleged facts that a jury could

find would deter persons of ordinary firmness from exercising

their First Amendment rights.

As indicated above, Media Matters is the target of a

government campaign of retaliation, including an

investigation, a press release, and a sweeping CID. Such a

campaign of retaliation in response to Appellees’ exercise of

their First Amendment rights reflects concrete and present

harm. And as the target of an arguably bad-faith investigation,

Appellees are also experiencing special burdens on their

newsgathering activities and operation of their media

company. See, e.g., J.A. 149-50 (chief operating officer says

staff are unwilling to speak internally on topics related to the

investigation; outside groups have limited their collaboration

with Media Matters; and Media Matters has paused similar

reporting for at least one other media platform); J.A. 161-64

(Hananoki says his editors declined to publish two of his

articles; he declined to pitch ideas for related reporting; and he

left out relevant details in some articles being published); J.A.

170-72 (editor in chief says Media Matters has changed its

review process; pared back its reporting; and declined to pursue

follow-up on the challenged article). Even though Paxton has

not yet filed an action to enforce the CID, Media Matters

reasonably altered its behavior to avoid creating evidence or

materials that it would be forced to turn over if the CID were

enforced.

These adverse effects are neither abstract nor contingent on

a future government action. And they suffice to establish injury

in fact. In addition, it is apparent that Appellees’ injury is

traceable to Paxton’s campaign of retaliation and that their

injury is redressable through injunctive relief.

27

The principal cases cited by Paxton to challenge the

justiciability of Appellees’ complaint are inapposite because

they involve plaintiffs claiming a chilling injury based on their

fear that general government policies might apply to them. See,

e.g., Laird v. Tatum, 408 U.S. 1, 2-3 (1972) (challenging the

Army’s domestic surveillance system); Saline, 88 F.4th at 300

(challenging a memorandum from the Attorney General that

directed law enforcement to investigate the issue of threats of

violence against school personnel); United Presbyterian

Church in the U.S.A. v. Reagan, 738 F.2d 1375, 1377-78 (D.C.

Cir. 1984) (challenging a presidential executive order that

authorized intelligence activities by the executive branch). In

these and other such cases there was no evidence that the

government was investigating or imminently planning to

investigate the plaintiffs; instead, the challenged government

action was strictly speculative. See Laird, 408 U.S. at 9-10

(noting that the plaintiffs alleged a chilling effect from “the

mere existence” of the surveillance system and “‘admit[ted]

that they complain of no specific action of the Army against

them’” (quoting Tatum v. Laird, 444 F.2d 947, 953 (D.C. Cir.

1971))); Saline, 88 F.4th at 305 (observing that nothing

indicated that the plaintiffs were the targets of the

investigation); United Presbyterian Church, 738 F.2d at 1379-

80 (concluding that the plaintiffs failed to allege that any

government surveillance was threatened or contemplated

against them, and that their contentions that they were more

likely to be surveilled than the general public were

speculative).

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

28

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.

Likewise, Paxton’s reliance on Twitter, Inc. v. Paxton, 56

F.4th 1170 (9th Cir. 2022), is misplaced. In Paxton’s view,

Twitter stands for the proposition that an Article III injury does

not exist when a CID is not self-enforcing. We disagree. In

Twitter, the Office issued a similar CID to Twitter, Inc.,

(“Twitter”) following its ban of President Trump from the

social media platform. 56 F.4th at 1172. However, before the

Office tried to enforce the CID in the Texas courts, Twitter

sued Paxton for First Amendment retaliation. Id. at 1172-73.

At the outset, the Ninth Circuit acknowledged that the case was

not a pre-enforcement challenge because Twitter claimed that

Paxton had already acted against it with the issuance of the CID

and related investigation. Id. at 1174-75. However, the court

rejected Twitter’s claim on the merits because it had failed to

adequately demonstrate chilled speech. See id. at 1174-75.

Specifically, the court recognized that self-censorship may

count as an injury in fact, but it concluded that Twitter’s claims

of chilling effects were too vague and conclusory. Id. Thus, the

Ninth Circuit recognized that a claim of retaliation – if

supported by sufficient evidence of chilled speech – would

provide Article III standing.

Twitter is easily distinguishable because, as detailed above,

Appellees in this case have supported their claims of adverse

effects to their news operations and journalistic mission with

detailed affidavits. And the District Court found ample

evidence of the harm caused by the retaliatory investigation

and CID. Media Matters, 732 F. Supp. 3d at 26.

Finally, Paxton invokes Reisman v. Caplin, 375 U.S. 440

(1964), to challenge the justiciability of Appellees’ action. In

29

Reisman, tax attorneys sought to enjoin the enforcement of a

summons issued by the Internal Revenue Service (“IRS”) to an

accounting firm regarding their client’s taxes. 375 U.S. at 442-

44. Ultimately, the Supreme Court dismissed the action for

“want of equity,” holding that the plaintiffs had “an adequate

remedy at law.” Id. at 443. Specifically, it explained that the

summons was only enforceable if the IRS sought relief in

federal court, and that a party only faced coercive penalties if

it refused to comply with a court order or did not challenge the

summons in good faith. Id. at 445-47. Further, the Court

emphasized that a party could contest the summons “on any

appropriate ground” in such a judicial proceeding, that a party

“would suffer no injury while testing the summons,” and that

“the remedy specified by Congress work[ed] no injustice and

suffer[ed] no constitutional invalidity.” Id. at 449-50. Paxton

claims that Reisman forecloses Appellees’ suit just because the

CID is not self-executing. We disagree.

Tellingly, Reisman did not concern First Amendment

retaliation. And Reisman does not govern this case because

Appellees are suffering ongoing injuries due to the campaign

of retaliation against them. See Twitter, 56 F.4th at 1178-79

(declining to apply Reisman for the same reasons). As such, the

Reisman Court’s statement that a party would not suffer an

injury while challenging a subpoena is inapplicable here.

Appellees’ injuries are ongoing, so they cannot get meaningful

redress by challenging the CID later.

D. The District Is a Proper Venue

Turning to the final preliminary issue, Paxton argues that

venue is improper in the District because all of the relevant

conduct giving rise to Appellees’ claim occurred in Texas. We

reject this claim and hold that venue is proper here.

30

Under the current venue statute, civil actions may be

brought in “a judicial district in which a substantial part of the

events or omissions giving rise to the claim occurred.” 28

U.S.C. § 1391(b)(2). Here, a substantial part of the events

giving rise to Appellees’ First Amendment retaliation claim

occurred in the District. Paxton hired a D.C. process server,

physical service of the CID on Media Matters’ counsel

occurred in the District, and the ensuing adverse effects from

the CID and investigation occurred primarily in the District. In

addition, the CID requires Media Matters to either make

available the requested records for inspection and copying at

its principal place of business or deliver copies of the

documents to the Office in Texas; therefore, Media Matters’

potential compliance with the CID will occur in the District,

where its principal place of business and physical records are

located.

Paxton relies on Leroy v. Great Western United Corp., 443

U.S. 173 (1979), for the proposition that the only appropriate

venue for this action is where the state actor took the regulatory

and enforcement actions, not where the plaintiff felt the impact

of those actions. This argument is unavailing.

In Leroy, the Supreme Court held that Texas was an

improper venue for an action – brought by a Texas corporation

against Idaho officials – challenging the constitutionality of an

Idaho statute that prevented the corporation from taking over

an Idaho company. 443 U.S. at 175, 183-86. Specifically, the

Court concluded that Idaho was the locus of the claim because

the action involved an Idaho statute, administrative reviews

and actions regarding the company’s filings occurred in Idaho,

and the majority of the relevant evidence and witnesses would

be in Idaho. Id. at 185-86. The Court rejected the corporation’s

argument that its claim arose in Texas since it would initiate its

31

tender offer for the Idaho company from Texas, and it felt the

impact of the statute in Texas. Id. at 186-87.

Leroy is not on point here. First, the Court decided Leroy

under an earlier version of the venue statute, where venue was

appropriate only in the judicial district “in which the claim

arose.” 28 U.S.C. § 1391(b) (1976); see also Bates v. C & S

Adjusters, Inc., 980 F.2d 865, 867 (2d Cir. 1992) (noting that

while the factors in Leroy are useful for “distinguishing

between two or more plausible venues,” they are “less

significan[t]” because the new venue statute does not require a

district court to determine the best venue); 14D CHARLES ALAN

WRIGHT, ARTHUR R. MILLER & RICHARD D. FREER, FEDERAL

PRACTICE & PROCEDURE § 3802, Westlaw (database updated

Apr. 2025) (“Leroy is of limited, if any, significance now.”).

Second, unlike in Leroy, Appellees are not directly challenging

a state statute. And the bulk of the relevant evidence and a

majority of the witnesses are not located outside the District.

E. The District Court Did Not Err In Issuing A Preliminary

Injunction

Finally, we hold that the District Court did not err in

granting the preliminary injunction because Appellees have

met each element of the test enunciated in Winter v. Natural

Resources Defense Council, Inc., 555 U.S. 7 (2008).

First, Appellees have demonstrated a likelihood of success

on the merits of their First Amendment retaliation claim. “In

First Amendment cases, the likelihood of success will often be

the determinative factor.” Green v. U.S. Dep’t of Just., 54 F.4th

738, 745 (D.C. Cir. 2022) (citation omitted). To prevail on the

merits of their First Amendment retaliation claim, Appellees

must prove: “(1) [they] engaged in conduct protected under the

First Amendment; (2) the defendant took some retaliatory

32

action sufficient to deter a person of ordinary firmness in [their]

position from speaking again; and (3) a causal link between the

exercise of a constitutional right and the adverse action taken

against’’ them. Aref v. Lynch, 833 F.3d 242, 258 (D.C. Cir.

2016) (citation omitted). Paxton has forfeited a challenge to the

second and third elements by failing to adequately contest them

on appeal. See Khine v. U.S. Dep’t of Homeland Sec., 943 F.3d

959, 967-68 (D.C. Cir. 2019) (“[I]t is not enough merely to

mention a possible argument in the most skeletal way.”

(citation omitted)); Shands v. Comm’r of Internal Revenue, 111

F.4th 1, 9 (D.C. Cir. 2024) (“[A]rguments raised for the first

time in a reply brief are forfeited.” (citation omitted)).

As to the first element, Appellees – a media organization

and news reporter – are obviously engaged in conduct

protected under the First Amendment. Indeed, the underlying

incident that precipitated their claim involved their news

reporting on a public figure and alleged political extremism on

a popular social media platform. Their reporting on public

issues are quintessential First Amendment activities. See

Snyder v. Phelps, 562 U.S. 443, 452 (2011) (‘‘[S]peech on

public issues occupies the highest rung of the hierarchy of First

Amendment values, and is entitled to special protection.”

(citation omitted)); N.Y. Times Co. v. Sullivan, 376 U.S. 254,

269 (1964) (“The general proposition that freedom of

expression upon public questions is secured by the First

Amendment has long been settled by our decisions.”); see also

Roth v. United States, 354 U.S. 476, 484 (1957) (“The

protection given speech and press was fashioned to assure

unfettered interchange of ideas for the bringing about of

political and social changes desired by the people.”).

On appeal, Paxton now argues that Appellees cannot

succeed on the merits because a retaliatory investigation is not

a cognizable claim. However, he has forfeited this argument by

33

failing to raise the issue before the District Court. See Salazar

ex rel. Salazar v. District of Columbia, 602 F.3d 431, 437 (D.C.

Cir. 2010) (“Generally, an argument not made in the trial court

is forfeited and will not be considered absent exceptional

circumstances.” (cleaned up)).

In addition, Paxton’s contention that Appellees’ conduct is

not constitutionally protected because their articles were

deliberately designed to mislead consumers about X is

meritless. The record is utterly devoid of evidence to support

such a claim.

Second, Appellees have shown that they would suffer

irreparable harm without an injunction. “The loss of First

Amendment freedoms, for even minimal periods of time,

unquestionably constitutes irreparable injury.” Pursuing Am.’s

Greatness v. FEC, 831 F.3d 500, 511 (D.C. Cir. 2016) (internal

quotation marks and citations omitted). Still, to obtain a

preliminary injunction, a party must show that their “First

Amendment interests are either threatened or in fact being

impaired at the time relief is sought.” Nat’l Treasury Emps.

Union v. United States, 927 F.2d 1253, 1254-55 (D.C. Cir.

1991) (cleaned up) (citations omitted).

As discussed above, the District Court found significant

evidence of ongoing adverse effects to Appellees’ First

Amendment rights due to the CID and investigation, including

current self-censorship in their reporting. We find no error in

this conclusion. Furthermore, Appellees are suffering from a

campaign of retaliation against them in response to their

exercise of their First Amendment rights. That is also an

irreparable injury. See Cate v. Oldham, 707 F.2d 1176, 1188-

89 (11th Cir. 1983) (holding that direct government retaliation

for the exercise of First Amendment rights is an irreparable

injury).

34

Third, Appellees have established that the balance of the

equities and the public interest weigh in their favor. It is well

settled that the balance of equities and public interest factors

merge if the government is the opposing party. Karem v.

Trump, 960 F.3d 656, 668 (D.C. Cir. 2020). In other words,

‘‘[w]hen a private party seeks injunctive relief against the

government,’’ we must ‘‘weigh[] the benefits to the private

party from obtaining an injunction against the harms to the

government and the public from being enjoined.” Huisha-

Huisha, 27 F.4th at 734 (citation omitted).

In this case, there is uncontested evidence of Paxton’s

retaliatory motive in investigating Media Matters. Although

Paxton certainly has an interest in enforcing a Texas law

designed to protect Texas consumers, the government may not

“act unlawfully even in pursuit of desirable ends.” Huisha-

Huisha, 27 F.4th at 734 (citations omitted); see also Karem,

960 F.3d at 668 (explaining that the Constitution does not allow

the government to prioritize policy goals over the Due Process

Clause). And “there is always a strong public interest in the

exercise of free speech rights otherwise abridged by an

unconstitutional” government action. Pursuing Am.’s

Greatness, 831 F.3d at 511 (citation omitted). On the record

before us, it is clear that the balance of equities and public

interest favor Appellees.

III. CONCLUSION

For the reasons set forth above, we affirm the judgment of

the District Court, including its issuance of a preliminary

injunction in favor of Appellees.

So ordered.

KAREN LECRAFT HENDERSON, Circuit Judge, concurring

in the judgment: Because Article III standing requires a non-

self-inflicted injury, and chilled speech from a non-self-

enforcing civil investigative demand is self-inflicted, many of

the harms Media Matters asserts cannot establish its standing.

In my view, standing may be satisfied here only because Media

Matters asserts that its “associations with other groups” have

“been impaired” as those groups reevaluate their work with

Media Matters in light of Attorney General Ken Paxton’s

investigation. J.A. 31. Paxton does not challenge that injury,

which is plainly not self-inflicted and thus can provide a basis

for standing.

The exercise of judicial power requires that the plaintiff

satisfy the “constitutional minimum of standing.” See Lujan v.

Defs. of Wildlife, 504 U.S. 555, 560 (1992). The plaintiff bears

the burden of showing a cognizable injury causally connected

to a defendant’s conduct that is redressable by the court. Id. An

injury in fact must be both concrete and particularized and

“actual or imminent, not conjectural or hypothetical.” Id.

(cleaned up). A causal connection must be “fairly traceable to

the challenged action of the defendant, and not the result of the

independent action of some third party not before the court.”

Id. (cleaned up). Hence, much of the harm Media Matters

asserts depends upon if and when its First Amendment rights

are sufficiently “chilled” to constitute an injury traceable to

government action.

In United Presbyterian, we noted that “[a]ll of the

Supreme Court cases employing the concept of ‘chilling effect’

involve situations in which the plaintiff has unquestionably

suffered some concrete harm (past or immediately threatened)

apart from the ‘chill’ itself.” United Presbyterian Church in

the U.S.A. v. Reagan, 738 F.2d 1375, 1378 (D.C. Cir. 1984).

This conclusion drew from the United States Supreme Court’s

holding that “[a]llegations of a subjective ‘chill’ are not an

adequate substitute for a claim of specific present objective

2

harm or a threat of specific future harm.” Laird v. Tatum, 408

U.S. 1, 13–14 (1972).

Granted, the precedent reviewed in United Presbyterian

differs from this case in that Media Matters has been directly

targeted by Paxton. In Clapper v. Amnesty International USA,

the Supreme Court found that individuals and organizations

whose work required engaging in sensitive and occasionally

privileged communications abroad lacked standing to

challenge a foreign intelligence law in part because they could

“only speculate as to how the [government] will exercise [its]

discretion in determining which communications to target.”

568 U.S. 398, 412 (2013). By contrast, Media Matters knows

Paxton’s civil investigative demand (CID) is directed to it.

But the targeted communications were not the only

speculative matters at issue in Clapper. In addition to targeting,

respondents speculated as to whether the government would

seek to use its investigative power at all and whether a “court

will authorize such surveillance.” Id. at 412–13. Those

questions arise here. Paxton cannot act upon the CID unless

(1) he seeks enforcement by a state court and (2) that court

obliges. See Tex. Bus. & Com. Code § 17.62(b) (West 2023).

Because Paxton cannot enforce the CID until a court has both

established jurisdiction of Media Matters and rejected Media

Matters’ First Amendment claims, its injury is too speculative

to be constitutionally ripe. See e.g., Devia v. Nuclear Regul.

Comm’n, 492 F.3d 421, 425 (D.C. Cir. 2007) (finding an

injury—regulatory approval of a nuclear storage facility where

further agency action precluded construction—too speculative

to be ripe); see also Clapper, 568 U.S. at 413 (“[W]e have been

reluctant to endorse standing theories that require guesswork as

to how independent decisionmakers will exercise their

judgment.”); cf. NTEU v. United States, 101 F.3d 1423, 1427

(D.C. Cir. 1996) (ripeness “shares the constitutional

3

requirement of standing that an injury in fact be certainly

impending”). Put differently, the injury threatened by

enforcement of the CID is not “certainly impending” and so

cannot “constitute injury in fact.” Clapper, 568 U.S. at 410

(quoting Whitmore v. Arkansas, 495 U.S. 149, 158 (1990)).

Like the plaintiffs in Clapper, Media Matters attempts to

overcome the ripeness obstacle by asserting that it is “suffering

ongoing injuries [including chilled speech] that are fairly

traceable” to Paxton’s CID today. Id. at 415. But to the extent

these harms result from a “reasonable reaction [by Media

Matters] to a risk of harm” the CID poses, I find that argument

“unavailing.” Id. at 416. Media Matters “cannot manufacture

standing merely by inflicting harm on [itself] based on [its]

fears of hypothetical future harm that is not certainly

impending.” Id. (citations omitted).

In Twitter, Inc. v. Paxton, 56 F.4th 1170 (9th Cir. 2022),

the Ninth Circuit addressed a challenge similar to the one

Media Matters mounts. True, one of the bases of that decision

is that Twitter’s allegations were too “vague” to satisfy

pleading standards, in that its “naked assertion that its speech

ha[d] been chilled [was] ‘a bare legal conclusion’ upon which

it [could not] rely to assert injury-in-fact.” Id. at 1175

(quotation omitted). By contrast, here the district court found

Media Matters’ declarations “concrete and particularized,”

Media Matters for Am. v. Paxton, 732 F. Supp. 3d 1, 26 (D.D.C.

2024), and the majority rightly differentiates Twitter on that

basis. Maj. Op. 28. But my colleagues mistakenly assert that

the Ninth Circuit “recognized that self-censorship may count

as an injury in fact.” Id. Instead, the Twitter court went on to

declare that “the enforceability of the CID remains an open

question” and so any costs Twitter incurred in adjusting its

speech were “incurred [] voluntarily.” Twitter, 56 F.4th at

1176. It concluded that “to the extent Twitter argues that any

4

actions it has taken in response to the CID create an Article III

injury, those injuries are self-inflicted because the actions were

voluntary;” and, as a result, “Twitter has not suffered an Article

III injury because the CID is not self-enforcing.” Id. (citing

Clapper, 568 U.S. at 418). The opinion does not rest on

Twitter’s insufficient pleading but instead on its declaration

that the case was “constitutionally unripe.” Id. at 1179.

The majority again sweeps too broadly in declaring that

“our sister circuits have issued judgments making it clear that

First Amendment retaliation claims are justiciable.” Maj. Op.

25. Of course some are but the inquiry does not stop there.

Retaliation claims, like all others, must still meet standing

requirements. Many of the injuries Media Matters asserts are,

in my view, insufficient to establish standing.1 The objective

“ordinary firmness” test, which requires the plaintiff to show

“the defendant took some retaliatory action sufficient to deter

a person of ordinary firmness in plaintiff’s position from

speaking again,” does not supersede standing requirements.

Aref v. Lynch, 833 F.3d 242, 258 (D.C. Cir. 2016). Nor do our

sister circuits’ decisions hold otherwise.

All of the cases—with one exception—cited by the

majority to support its broad assertion address allegations that

plainly satisfy standing. See Anderson v. Davila, 125 F.3d 148,

159–60 (3d Cir. 1997) (alleging that defendants conducted

ongoing, targeted surveillance of plaintiff); Thaddeus-X v.

Blatter, 175 F.3d 378, 384 (6th Cir. 1999) (alleging that prison

guards deliberately denied prisoners materials to pursue a

lawsuit, served one prisoner cold food and reassigned another

1

Unlike the majority, I find that any alterations Media Matters

made to its own behavior “to avoid creating evidence or materials

that it would be forced to turn over if the CID were enforced,” Maj.

Op. 26, are self-inflicted and, as the Ninth Circuit put it, “voluntary,”

Twitter, 56 F.4th at 1176.

5

prisoner to a worse cell); Bennett v. Hendrix, 423 F.3d 1247,

1249 (11th Cir. 2005) (alleging that officers “engaged in a

campaign of retaliation,” including active surveillance,

roadblocks and false traffic citations); Boquist v. Courtney, 32

F.4th 764, 771, 782 (9th Cir. 2022) (alleging that defendant

imposed “12-hour notice rule” requiring plaintiff to provide

notice before visiting state capitol); Rudd v. City of Norton

Shores, 977 F.3d 503, 515 (6th Cir. 2020) (alleging that

defendants weaponized an expired protection order, breached

confidentiality rules and detained plaintiff without probable

cause). The one outlier is Dixon v. Brown, 38 F.3d 379 (8th

Cir. 1994). There, the Eighth Circuit found that the filing of a

false disciplinary charge against a prisoner could satisfy the

injury requirement—even when that charge resulted in no

punishment—provided it was filed in retaliation for the

prisoner’s exercise of his First Amendment rights. Id. But this

short opinion falls short of establishing that retaliation

simpliciter suffices to establish standing. Having asserted a

First Amendment retaliation claim, Media Matters must still

satisfy standing.

Excluding its self-inflicted harms, Media Matters alleges

little to establish a cognizable injury. Changing the articles

selected for publication or research, J.A. 161–62 (Hananoki

Decl. ¶¶ 29–32), 170–71 (Dimiero Decl. ¶¶ 16–18), adjusting

the article review process, id., refraining from sharing certain

research with partners, id. at 150 (Padera Decl. ¶ 25), or

adjusting internal communications processes, id. 172 (Dimiero

Decl. ¶ 21), are all self-inflicted by Media Matters to avoid

harm related to a CID “that is not certainly impending.”

Clapper, 568 U.S. at 416. Nonetheless, I believe Media

Matters alleges one injury that does pass muster.

The complaint alleges that “Media Matters’s associations

with other groups have . . . been impaired by Attorney General

6

Paxton’s investigation. Groups that previously worked closely

with Media Matters have reevaluated doing so . . . .” J.A. 31;

see also J.A. 150 (Padera Decl. ¶ 25) (same). Paxton has not

challenged this injury but we must nevertheless assure

ourselves of its sufficiency to support standing.2 On its face, it

is an injury allegedly caused by the CID that is ongoing—not

contingent or attenuated—and not self-inflicted. And, although

it is “substantially more difficult to establish” standing “where

a causal relation between injury and challenged action depends

upon the decision of an independent third party[,] . . . standing

is not precluded.” California v. Texas, 593 U.S. 659, 675

(2021) (cleaned up). At later stages of this litigation, Media

Matters will have to proffer evidence showing that groups that

have reevaluated their professional relationship with Media

Matters did so because of “the predictable effect of

Government action on [their] decisions.” Dep’t of Com. v. New

York, 588 U.S. 752, 768 (2019) (states had standing to

challenge U.S. census form because census question would

deter noncitizens from responding and thereby limit states’

entitlement to federal funds). But “[a]t the pleading stage,

general factual allegations of injury resulting from the

defendant’s conduct may suffice,” Lujan, 504 U.S. at 561, and

here Media Matters has alleged an injury “fairly traceable to

[Paxton’s] challenged action,” Clapper, 568 U.S. at 409.

Taking the allegation as true, as we must at this stage, I believe

it constitutes a plausible basis for standing.

But Paxton rests his entire injury-in-fact challenge on the

broader assertion that this case is not “justiciable” because the

CID is not self-executing. Appellant Br. at 34–45. This

argument goes only so far. The insufficiency of a non-self-

2

“[S]tanding is jurisdictional and it can never be forfeited or

waived.” Bauer v. Marmara, 774 F.3d 1026, 1029 (D.C. Cir. 2014)

(citation omitted).

7

executing CID is not that it automatically precludes any related

cause of action but that it does not provide sufficiently

imminent support for an asserted injury in fact. Nor can current

self-inflicted harm—which is harm “based on . . . fears of

hypothetical future harm that is not certainly impending”—

provide an alternative basis for injury in fact. Clapper, 568

U.S. at 416. With future injury from such a CID insufficiently

ripe and current injuries self-inflicted, a party may lack

standing and a case may not be justiciable. But that is not this

case. I believe the alleged current impairment of Media

Matters’ professional associations and collaborations with third

parties can support its standing. Accordingly, I concur in the

judgment.