Google, Incorporated v. James Hood, III
822 F.3d 212
| 5th Cir. | 2016Background
- Mississippi Attorney General James Hood issued a broad 79-page administrative subpoena to Google alleging violations of the Mississippi Consumer Protection Act and seeking extensive information about Google Search, Autocomplete, YouTube, AdWords/AdSense, and Google’s content‑policing practices.
- The subpoena was non‑self‑executing (Hood lacked unilateral enforcement power) and included very broad definitions (e.g., “aid,” “facilitate,” “dangerous or illegal content”), many requests without temporal limits, and would impose significant burden to comply.
- Google filed a federal suit asserting § 1983 claims and constitutional and statutory defenses (including CDA § 230 immunity, First and Fourth Amendment claims, and preemption) and moved for a TRO and preliminary injunction to block enforcement of the subpoena and to enjoin Hood from bringing civil or criminal actions against Google for “making accessible third‑party content.”
- The district court denied Hood’s motion to dismiss and granted a preliminary injunction enjoining enforcement of the subpoena and barring future state civil or criminal actions on the stated theory.
- The Fifth Circuit (per Higginson, J.) considered jurisdiction, Younger abstention, ripeness for pre‑enforcement review of a non‑self‑executing subpoena, and the scope of injunctive relief, and vacated the district court’s injunction and remanded with instructions to dismiss Google’s pre‑enforcement claims.
Issues
| Issue | Plaintiff's Argument (Google) | Defendant's Argument (Hood) | Held |
|---|---|---|---|
| Federal‑question jurisdiction | Google invoked § 1983 and federal claims; federal courts can enjoin state officers who threaten to violate federal rights | Google’s claims are anticipatory defenses to a potential state action and therefore not properly in federal court | Federal jurisdiction exists because Google affirmatively pleaded federal claims seeking declaratory and injunctive relief (jurisdiction proper) |
| Abstention under Younger | Federal relief appropriate because no ongoing state judicial enforcement proceeding exists | Younger requires abstention from federal court where state investigation/subpoena is pending | Younger does not apply: issuance of a non‑self‑executing administrative subpoena alone is not an ‘‘ongoing state judicial proceeding’’ triggering Younger |
| Ripeness of pre‑enforcement challenge to subpoena | Immediate federal review needed to avoid burden and chilling of speech; subpoena threatens constitutional injury | Subpoena is non‑self‑executing; Hood must seek state‑court enforcement before coercive consequences; Google has an adequate remedy at law in state court enforcement proceedings | Pre‑enforcement challenge is not ripe because subpoena is non‑self‑executing and Hood had not initiated enforcement; dismissal required |
| Scope of preliminary injunction against future state enforcement actions | Broad injunction necessary to prevent imminent First Amendment and CDA injuries from prospective enforcement | Injunction is overbroad and speculative; threat of enforcement is not sufficiently imminent or specific to justify prospective equitable relief | Injunction against future civil/criminal actions was improper: no imminent, non‑speculative irreparable injury and relief was overbroad; vacated |
Key Cases Cited
- Doe v. MySpace, Inc., 528 F.3d 413 (5th Cir. 2008) (describing broad scope of CDA § 230 immunity)
- Backpage.com, LLC v. Dart, 807 F.3d 229 (7th Cir. 2015) (struck down extrajudicial pressure on intermediaries as unconstitutional)
- NiGen Biotech, L.L.C. v. Paxton, 804 F.3d 389 (5th Cir. 2015) (federal declaratory and injunctive relief appropriate against threatened state enforcement)
- Atl. Richfield Co. v. F.T.C., 546 F.2d 646 (5th Cir. 1977) (pre‑enforcement challenges to non‑self‑executing agency subpoenas are generally inappropriate)
- In re Ramirez, 905 F.2d 97 (5th Cir. 1990) (non‑self‑executing administrative subpoenas not ripe for pre‑enforcement judicial review)
- Morales v. Trans World Airlines, Inc., 504 U.S. 374 (1992) (limits on federal courts’ injunctive power against state enforcement actions; injunctions must be no broader than necessary)