Media Matters for America and Eric Hananoki v. Warren Kenneth Paxton , J R .

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 20, 2024 Decided May 30, 2025
No. 24-7059
M EDIA M ATTERS FOR AMERICA AND ERIC HANANOKI,
APPELLEES
v.
WARREN KENNETH P AXTON , J R ., IN HIS OFFICIAL CAPACITY AS
ATTORNEY GENERAL OF THE S TATE 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: H ENDERSON and P AN , 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. B US . & C OM. C ODE § 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. B ACKGROUND
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. B US . & C OM. C ODE § 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. B US . &
C OM. C ODE § 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.
C ODE § 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, T HE 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-

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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. C ODE § 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

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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

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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

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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

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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 T EX. B US . & C OM. C ODE § 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.

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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

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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

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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,”

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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

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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.

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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

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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

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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.

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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

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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 C HARLES ALAN
WRIGHT, ARTHUR R. M ILLER & R ICHARD D. FREER , FEDERAL
P RACTICE & P ROCEDURE § 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

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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

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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).

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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.

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KAREN LEC RAFT H ENDERSON, 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

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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

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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

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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.

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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

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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).

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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.

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