GOOGLE, INCORPORATED, Plaintiff-Appellee v. James M. HOOD, III, Attorney General of the State of Mississippi, in his official capacity, Defendant-Appellant.
No. 15-60205.
United States Court of Appeals, Fifth Circuit.
May 18, 2016.
822 F.3d 212
STEPHEN A. HIGGINSON, Circuit Judge
Second, regarding his request to join new defendants, Legate has never identified the individuals he seeks to add and has not explained how adding these defendants would overcome the substantive flaws in his Eighth Amendment and substantive-due-process claims. We therefore agree with the district court‘s finding that amending the complaint to include unidentified TDCJ policymakers as defendants would be futile.
Accordingly, the district court did not abuse its discretion in denying leave to amend on either basis.
AFFIRMED.
Fred H. Krutz, III, Daniel J. Mulholland, Esq., Forman Watkins & Krutz,
Douglas T. Miracle, Assistant Attorney General (argued), Krissy C. Nobile, Esq., Office of the Attorney General for the State of Mississippi, Jackson, MS, John Wimberly Kitchens, Kitchens Law Firm, P.A., Crystal Springs, MS, F. Jerome Tapley, Esq., Cory Watson, P.C., Birmingham, AL, for Defendant-Appellant.
Paul D. Clement (argued), Viet Dong Dinh, Jeffrey Matthew Harris, Bancroft, P.L.L.C., Washington, DC, for Digital Citizens Alliance Amicus Curiae; Taylor Hooton Foundation amicus curiae; Ryan United amicus curiae.
Esha Bhandari, Samia Akther Hossain, American Civil Liberties Union Foundation of New York, New York, NY, for American Civil Liberties Union amicus curiae.
Charles Baron Irvin, Esq., American Civil Liberties Union of Mississippi, Jackson, MS, for American Civil Liberties Union Of Mississippi, Incorporated amicus curiae.
Jonathan Band, Washington, DC, for Computer & Communications Industry Association Amicus Curiae; Engine Amicus Curiae; Consumer Electronics Association amicus curiae.
Hanni Meena Fakhoury, Esq., Mitchell Stoltz, Electronic Frontier Foundation, San Francisco, CA, for Electronic Frontier Foundation amicus curiae; Center for Democracy and Technology amicus curiae; New America‘s Open Technology Institute amicus curiae; Public Knowledge amicus curiae; R Street Institute amicus curiae.
Before STEWART, Chief Judge, KING and HIGGINSON, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge:
In response to Google‘s petition for panel rehearing, the opinion of the court is
Mississippi‘s Attorney General, James M. Hood III, believes that internet giant Google may be liable under state law for facilitating dangerous and unlawful activity through its online platforms. Hood‘s conflict with Google culminated in his issuance of a broad administrative subpoena, which Google challenged in federal court. The district court granted a preliminary injunction prohibiting Hood from (1) enforcing the administrative subpoena or (2) bringing any civil or criminal action against Google “for making accessible third-party content to internet users.” Hood appeals, arguing that the district court should have dismissed Google‘s suit on a number of threshold grounds, and in any event erred in granting injunctive relief. Expressing no opinion on the merits, we vacate the injunction.
I.
This dispute concerns the adequacy of Google‘s efforts to police the technology services it provides to tens of millions of people every day.
A.
Google‘s leading internet search engine processes over 3.5 billion searches per day, finding webpages responsive to users’ queries through an algorithmic review of billions of pages selected from over 60 trillion indexed pages.1 Google also operates YouTube, a popular platform for uploading and viewing videos to which nearly 300 new hours of content are added every minute. Both services feature Google‘s “Autocomplete” function, which uses an algorithm based on prior search activity and the content of indexed pages to predict a query as it is typed. This feature, according to Google, is intended to save time and correct common misspellings. The user may select one of the suggested queries to run a search, or ignore the suggestions and keep typing.
Google earns revenue through services called AdWords, which places third-party advertisements alongside search results and YouTube videos, and AdSense, which allows third-party websites to host advertisements generated through AdWords. Over 40 million AdWords advertisements are created each day. The order in which they appear to users depends on, among other factors, how much the advertiser pays and the “quality” of the advertisements and linked websites.
Although the vast majority of the content users find through Google‘s services is produced by third parties, Google takes measures to weed out illegal material. For example, when Google receives a valid “takedown notice” from a copyright owner about a webpage containing unauthorized material, or when a court rules content unlawful, Google removes the offending page from its search results. In 2013 alone, Google removed 222 million pages from its search results as a result of takedown notices. Though it generally does not remove whole sites on the basis of infringing pages, Google “incorporates” copyright removal notices as a negative factor in the search algorithm it uses to
Videos that violate YouTube‘s terms and conditions can be removed in several ways. Users can flag videos, which are then reviewed and, if they violate Google‘s guidelines, taken down. Google also removes videos in response to valid legal complaints and uses computer models to identify large-scale policy violations. Additionally, a system called Content ID allows copyright owners to “identify and manage their content on YouTube” by sending YouTube a database of copyrighted files. When a newly uploaded video matches such a file, the copyright owner can choose to mute, block, monetize, or track that video. User accounts can be terminated for egregious or repeated violations.
Google‘s AdWords policies prohibit advertising for, among other things, counterfeit goods, “dangerous products or services” including recreational drugs and weapons, “products that are designed to enable dishonest behavior” such as hacking software, and hate-promoting or otherwise “offensive or inappropriate content.” Google restricts (but does not prohibit) advertising for “adult-oriented content,” alcoholic beverages, intellectual-property-violative material, and healthcare-related content (including over-the-counter and prescription medication). In 2014, Google rejected over 428 million advertisements and suspended or terminated over 900,000 advertiser accounts for AdWords policy violations. Similar policies govern AdSense.
B.
In late 2012 and early 2013, Hood and other state attorneys general began expressing concern that search engines were not doing enough to combat copyright infringement, the sale of prescription drugs and counterfeit products, and other “illegal and harmful” activity on the internet. In April 2013, Hood‘s office wrote to Google about these topics, alleging that the company had inadequately responded to previous requests for information, showing an “unwillingness to make meaningful reforms” and “a lack of commitment to making the Internet a safe place for families and commerce.” Hood complained that, among other things, children were “able to purchase drugs without a prescription through Google,” and that “sites peddling counterfeit and pirated goods are still appearing at the top of” search results. Hood expressed a desire to meet with Google to develop solutions, but warned that “if voluntary actions will not suffice, we will take legal action.” As it had before, Google responded, highlighting its existing efforts to counter illegal activity online and explaining why, in its view, more severe measures were inappropriate.
Friction between the parties escalated. In May 2013, Hood threatened that if the company did not “provide adequate answers,” he would urge his fellow attorneys general to issue civil investigative demands (subpoenas) to the company. He also demanded a “24-hour link” through which requests by attorneys general to remove webpages from Google‘s searchable index would be “granted or addressed within
At a subsequent meeting of attorneys general, Hood called on his colleagues to issue subpoenas in an effort to “force [Google] to come to the table in earnest and make these changes and admit what they‘ve done” and “block ... some of the search results that are coming to the top ahead of ... legitimate sites.” Google wrote to Hood about these remarks, arguing that its existing practices were lawful, that more stringent measures against illegal content would be inconsistent with free speech values and the practices of similar companies, and that federal law immunized Google from liability for the complained-of conduct.
In November 2013, Hood sent another letter criticizing Google and demanding that the company (1) promote in its search results “sites [that] have been authorized to provide content“; (2) mark such “authorized” sites in search results; (3) remove entire websites “substantially dedicated to intellectual property infringement” from its search index; (4) refuse to index new pages from websites “for which Google has received multiple notices of infringement“; (5) “dramatically” demote “rogue” infringement sites in search results; and (6) warn users before it “permits them to link from Google to rogue sites.” Hood rejected the notion that Google was immune from legal action, stating that Google was being investigated for its “own conduct” and was “not a mere publisher of third-party content when it suggests search terms through Autocomplete,” profits from YouTube videos involving illegal activity, or builds its search algorithms. Hood repeated similar criticisms and demands at public meetings in early 2014, as the parties continued to exchange letters.
Google has made some changes in response to Hood‘s investigation. It created a “trusted flag” mechanism through which Google promptly reviewed videos Hood‘s office complained about. After being trained on that tool, Hood‘s office flagged seven videos, six of which Google quickly took down. When asked by the district court, Hood‘s counsel could not identify any investigatory efforts related to the videos his office flagged. His office has nevertheless asked that Google immediately remove flagged videos pending review and “consider implementing a more comprehensive content evaluation process.” Google has also blocked certain Autocomplete predictions and no longer permits advertisements on videos relating to “health and pharmacy” topics.
C.
In October 2014, Hood made good on his threats to issue an administrative subpoena, which stated broadly that there were “reasonable grounds to believe that Google Inc. may have violated ... the Mississippi Consumer Protection Act,”
The administrative subpoena, which totals 79 pages and includes 69 interrogatories and 141 document requests, is written expansively. For example, many of its requests pertain to conduct by which Google or third parties “aid,” “abet,” “assist,” “facilitate,” “encourage,” or “promote” content or conduct that is “dangerous” or “unlawful.” These verbs are all defined as doing of any act, including the act of hosting or displaying search results, content or advertisements, that could possibly directly, indirectly or tangentially further or advance a course of action by any actor or actors, regardless of whether or not the act or acts would be protected or immunized under the Communications Decency Act,
Some of the administrative subpoena‘s requests would require massive document production. For example, one seeks “all documents concerning any actions considered, taken, or not taken to remove videos ... that appear to be promoting, offering for sale, disseminating, engaging in or facilitating Dangerous or Illegal Content/Conduct,” without temporal limitation. For context, in 2014 alone, Google removed or blocked over 180 million videos for policy violations. Many requests lack temporal limitations as well. Google executives aver that responding to the administrative subpoena “would be incredibly burdensome, in terms of time and resources.”
The parties agreed to extend the return date to January 5, 2015, and that Google would in the meantime voluntarily share some materials. Google then shared approximately 100,000 pages of documents. Google claims that those documents show third parties created all of the content that the administrative subpoena identifies as objectionable. On December 17, 2014, Hood‘s office rebuffed Google‘s requests to narrow the administrative subpoena‘s temporal scope and exclude subject matters Google maintains are immunized by or are exclusively the province of federal law.
D.
On December 19, 2014—without further responding to the administrative subpoena or seeking relief in state court—Google filed this lawsuit. Google alleges that Hood‘s investigation violates Google‘s immunity under the Communications Decency Act (CDA), its Fourth Amendment rights, and the First Amendment rights of Google and its users. Google contends that “any further steps [Hood] takes to fulfill his threats of a criminal prosecution,
On the same day it filed its complaint, Google moved for a temporary restraining order and a preliminary injunction. Hood filed an opposition and a motion to dismiss. The district court held a hearing at which each side offered legal argument but neither put on testimony. The court then denied Hood‘s motion to dismiss and preliminarily enjoined him from (1) enforcing the administrative subpoena, or (2) “bringing a civil or criminal charge against Google under Mississippi law for making accessible third-party content to Internet users (as threatened).” This appeal followed.
II.
A preliminary injunction is an “extraordinary remedy” that should not be granted unless its proponent clearly shows: “(1) a substantial likelihood that he will prevail on the merits, (2) a substantial threat that he will suffer irreparable injury if the injunction is not granted, (3) his threatened injury outweighs the threatened harm to the party whom he seeks to enjoin, and (4) granting the preliminary injunction will not disserve the public interest.” Lake Charles Diesel, Inc. v. Gen. Motors Corp., 328 F.3d 192, 195-96 (5th Cir.2003). We review the district court‘s determination on each of these elements for clear error, its conclusions of law de novo, and the ultimate decision whether to grant relief for abuse of discretion. Bluefield Water Ass‘n v. City of Starkville, 577 F.3d 250, 253 (5th Cir.2009).
Our review of subject-matter jurisdiction is plenary and de novo. Hoskins v. Bekins Van Lines, 343 F.3d 769, 772 (5th Cir.2003). “Although we review a district court‘s abstention ruling for abuse of discretion, we review de novo whether the requirements of a particular abstention doctrine are satisfied.” Tex. Ass‘n of Bus. v. Earle, 388 F.3d 515, 518 (5th Cir.2004) (quoting Nationwide Mut. Ins. Co. v. Unauthorized Practice of Law Comm., 283 F.3d 650, 652 (5th Cir.2002)).
III.
This lawsuit, like others of late, reminds us of the importance of preserving free speech on the internet, even though that medium serves as a conduit for much that is distasteful or unlawful. See Backpage.com, LLC v. Dart, 807 F.3d 229 (7th Cir.2015) (holding unconstitutional a sheriff‘s threats to credit card companies to stop doing business with a website that hosts classified ads for prostitution). Also like other recent litigation, this case implicates
A.
We first reject Hood‘s contention that we can resolve this case on the simple ground that the district court lacked federal-question jurisdiction. Federal courts have jurisdiction over “all civil actions arising under the Constitution, laws, or treaties of the United States.”
Focusing on Google‘s claims for declaratory relief, Hood protests that Google really presents only artfully pleaded anticipated defenses to a future state-law action—but he is wrong, as illustrated by our recent decision in NiGen Biotech, L.L.C. v. Paxton, 804 F.3d 389 (5th Cir.2015). There, the Texas Attorney General determined that NiGen‘s dietary supplements were misleadingly labeled in violation of state law. He sent NiGen and its retailers letters “intimating that formal enforcement was on the horizon“; as a result, the retailers stopped selling the accused products. 804 F.3d at 392. NiGen sought federal declaratory and injunctive relief, but the Attorney General argued that all of NiGen‘s claims were “essentially anticipatory defenses to the threatened enforcement action.” Id. at 392, 395. We disagreed, explaining that when a plaintiff seeks both declaratory and injunctive relief from allegedly unconstitutional state action, the well-pleaded complaint rule as adapted to declaratory actions “does not prevent that plaintiff from establishing federal jurisdiction.” Id. at 395-96. Here too, Google‘s claims seeking to enjoin a state officer‘s alleged violations of federal law invoke federal-question jurisdiction. See Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 96 n. 14 (1983) (“It is beyond dispute that federal courts have jurisdiction over suits to enjoin state officials from interfering with federal rights.“); Major League Baseball v. Crist, 331 F.3d 1177, 1182 (11th Cir. 2003) (holding that federal-question jurisdiction existed over
B.
We next consider whether the district court should have abstained under the doctrine of Younger v. Harris, 401 U.S. 37 (1971), which applies to suits for injunctive and declaratory relief. See Nobby Lobby, Inc. v. City of Dallas, 970 F.2d 82, 86 (5th Cir.1992).
Younger established that federal courts should not enjoin pending state criminal prosecutions unless the plaintiff shows “bad faith, harassment, or any other unusual circumstances that would call for equitable relief,” such as a “flagrantly and patently” unconstitutional state statute. Younger, 401 U.S. at 53-54. The doctrine reflects the principle that equitable remedies are inappropriate “when the moving party has an adequate remedy at law and will not suffer irreparable injury if denied equitable relief.” Id. at 43-44. It also protects our federal system‘s “notion of ‘comity,’ that is, a proper respect for state functions.” Id. at 44. As the Supreme Court has explained, interference with state judicial proceedings “prevents the state from effectuating its substantive policies ... results in duplicative legal proceedings, and can readily be interpreted ‘as reflecting negatively upon the state courts’ ability to enforce constitutional principles.‘” Huffman v. Pursue, Ltd., 420 U.S. 592, 604 (1975) (quoting Steffel v. Thompson, 415 U.S. 452, 462 (1974)).
Although Younger has been expanded beyond the criminal context, abstention is not required in every case of “[p]arallel state-court proceedings.” Sprint Commc‘ns, Inc. v. Jacobs, 134 S.Ct. 584, 591 (2013). Rather, as the Supreme Court recently clarified, it applies only to “three ‘exceptional’ categories” of state proceedings: ongoing criminal prosecutions, certain civil enforcement proceedings akin to criminal prosecutions,5 and “pending ‘civil proceedings involving certain orders uniquely in furtherance of the state courts’ ability to perform their judicial functions.‘”6 Id. at 588, 591 (quoting New Orleans Pub. Serv., Inc. v. Council of City of New Orleans, 491 U.S. 350, 368 (1989)). If state proceedings fit into one of these categories, a court “appropriately consider[s] ... before invoking Younger” whether there is “(1) ‘an ongoing state judicial proceeding, which (2) implicates important state interests, and (3) provides an adequate opportunity to raise federal challenges.‘” Id. at 593 (brackets omitted); see Middlesex Cty. Ethics Comm. v. Garden State Bar Ass‘n, 457 U.S. 423, 432-35 (1982).
Here, we cannot agree with Hood that an executive official‘s service of a non-self-executing subpoena creates an “ongoing state judicial proceeding.“. As of now, Hood has not moved to enforce the administrative subpoena in any state court, nor has any judicial or quasi-judicial tribunal begun proceedings against Google. See Ankenbrandt v. Richards, 504 U.S. 689, 705 (1992) (holding Younger abstention clearly erroneous “[a]bsent any pending proceeding in state tribunals“). Our holding that Younger does not apply comports with the doctrine‘s underlying principles because, in the absence of any pending state judicial proceeding, federal intervention would not “result in duplicative legal proceedings” or “reflect[] negatively upon [a] state court‘s ability to enforce constitutional principles.” Steffel, 415 U.S. at 462.
Our decision in Earle, 388 F.3d at 515, does not compel a different conclusion. There, we considered “whether state grand jury proceedings in which subpoenas have been issued constitute an ‘ongoing state proceeding’ such that abstention is warranted.” Id. at 519 (emphasis added). Crucial to our affirmance of the district court‘s abstention was that a Texas grand jury “is said to be ‘an arm of the court by which it is appointed.‘” Id. at 521 (quoting Dall. Cty. Dist. Att‘y v. Doe, 969 S.W.2d 537, 542 (Tex.App.1998)). Indeed, a Texas court (1) “impanels the grand jury after testing the qualifications of its members;” (2) “administers the jurors’ oath, and instructs them as to their duties“; (3) advises the grand jury “on any matter it is considering“; and (4) issues and enforces any subpoena sought to be issued by the grand jury. Id. These factors are not present here. An executive official who frequently appears as an adversarial litigant in state courts is not an “arm” of the judiciary, and the administrative subpoena here has not been issued or enforced by any court. For these reasons,
Other courts’ decisions support our conclusion that Younger does not apply. Most on point, one district court found that there was no ongoing judicial proceeding where a state attorney general issued civil investigative demands to professional baseball teams, reasoning: “Unless and until someone files a proceeding in court, CIDs are simply part of an executive branch investigation.” Major League Baseball v. Butterworth, 181 F.Supp.2d 1316, 1321 n. 2 (N.D.Fla.2001), aff‘d sub nom. Major League Baseball v. Crist, 331 F.3d 1177 (11th Cir.2003). Also, the First Circuit refused to apply Younger where Puerto Rico‘s Insurance Commissioner had, as part of a multi-year investigation, issued subpoenas that did not require prior court approval. Guillemard-Ginorio v. Contreras-Gomez, 585 F.3d 508, 511-12, 519 (1st Cir.2009). That court drew on a Fourth Circuit decision in articulating a “rule[] requiring the commencement of ‘formal enforcement proceedings’ before abstention is required.” Id. at 519-20 (quoting Telco, 885 F.2d at 1229).8 We do not articulate any bright-line rule, but we do hold that the issuance of a non-self-executing administrative subpoena does not, without more, mandate Younger abstention.
C.
Despite the foregoing, our precedents lead us to conclude that this administrative subpoena was not ripe for adjudication by the district court. This follows from our cases considering federal administrative subpoenas that, as here, were non-self-executing—that is, the issuing agency could not itself sanction non-compliance. In one case, the recipient of investigatory Federal Trade Commission subpoenas sought injunctive and declaratory relief against their enforcement. Atl. Richfield Co. v. F.T.C., 546 F.2d 646, 647 (5th Cir.1977). Stressing that the subpoenas were “not self-executing and [could] only be enforced by a district court,” we held that pre-enforcement relief would be “inappropriate.” Id. at 649. We reasoned that, if and when the FTC moved to en-
We applied the same logic when the recipient of an administrative subpoena issued by the Immigration and Naturalization Service moved to quash it in federal court. In re Ramirez, 905 F.2d 97, 98 (5th Cir.1990). The operative statute gave the INS no power to enforce its own subpoenas, but authorized district courts to issue orders requiring compliance on pain of contempt. Id. at 98 & n. 2. Though both parties thought the case properly before the district court, we disagreed, stating: “Where an agency must resort to judicial enforcement of its subpoenas, courts generally dismiss anticipatory actions filed by parties challenging such subpoenas as not being ripe for review because of the availability of an adequate remedy at law if, and when, the agency files an enforcement action.” Id. at 98. Because the government had not filed an enforcement action, this court held that the “motion to quash was not ripe for judicial action ... and ...
The situation here is much the same. The statute under which this administrative subpoena was issued gives Hood no authority to enforce it; instead, if the recipient refuses to comply, the Attorney General “may, after notice, apply” to certain state courts “and, after hearing thereon, request an order” granting injunctive or other relief and enforceable through contempt.
Because the administrative subpoena is not ripe for review, we hold that the district court should have rejected Google‘s pre-enforcement challenge.
D.
The district court enjoined Hood not only from enforcing the administrative subpoena, but also from “bringing a civil or criminal charge against Google under Mississippi law for making accessible third-party content to Internet users.” Mindful that an injunction is an “extraordinary remedy” that should not issue absent a substantial threat that the movant will suffer irreparable injury without one, Lake Charles Diesel, 328 F.3d at 195-96, we are persuaded that the district court should not have granted this relief at this juncture.
In Morales v. Trans World Airlines, Inc., 504 U.S. 374 (1992), the Supreme Court affirmed on federal preemption grounds an injunction against enforcement, under state consumer protection law, of written guidelines “containing detailed standards governing” air fare ad-vertising—which Texas had told airlines they were violating through “formal notice[s] of intent to sue.” 504 U.S. 374, 378-80, 391 (1992) (alteration in original). But the Court also held that the district court had “disregarded the limits on the exercise of its injunctive power” by enjoining the attorney general from “initiating any enforcement action ... which would seek to regulate or restrict any aspect of the ... plaintiff airlines’ air fare advertising or the operations involving their rates, routes, and/or services.” Id. at 382. The Court explained:
In suits such as this one, which the plaintiff intends as a “first strike” to prevent a State from initiating a suit of its own, the prospect of state suit must be imminent, for it is the prospect of that suit which supplies the necessary irreparable injury. Ex parte Young thus speaks of enjoining state officers “who threaten and are about to commence proceedings,” and we have recognized in a related context that a conjectural injury cannot warrant equitable relief. Any other rule (assuming it would meet Article III case-or-controversy requirements) would require federal courts to determine the constitutionality of state laws in hypothetical situations where it is not even clear the State itself would consider its law applicable. This problem is vividly enough illustrated by the blunderbuss injunction in the present case, which declares preempted “any” state suit involving “any aspect” of the airlines’ rates, routes, and services. As petitioner has threatened to enforce only the obligations described in the guidelines regarding fare advertising, the injunction must be vacated
insofar as it restrains the operation of state laws with respect to other matters. Id. at 382-83 (citations omitted).
Unlike with the relief upheld in Morales, we do not have a formal notice of intent to sue for specific conduct.11 Rather, as with the relief vacated in Morales, this injunction covers a fuzzily defined range of enforcement actions that do not appear imminent. We cannot on the present record predict what conduct Hood might one day try to prosecute under Mississippi law. Hood‘s complaints to Google and the public have been wide-ranging, and as Google stresses in its brief, the administrative subpoena is a “pre-litigation investigative tool” seeking information on a broad variety of subject matters—ranging from alleged facilitation of copyright infringement, illegal prescription drug sales, human trafficking, the sale of false identification documents, and credit card data theft. Further, whether a defendant‘s actions exclusively consist of “making accessible third-party content to Internet users,” the main qualifying language in this injunction, is not always readily determinable even after a complaint is brought. See CYBERsitter, LLC v. Google, Inc., 905 F.Supp.2d 1080, 1086 (C.D.Cal.2012) (denying Rule 12(b)(6) motion based on CDA immunity); Perfect 10, Inc. v. Google, Inc., No. CV 04-9484 AHM (SHx), 2008 WL 4217837, at *8 (C.D.Cal. July 16, 2008) (“The question whether any of Google‘s conduct disqualifies it for immunity under the CDA will undoubtedly be fact-intensive.“).12
True enough, a federal lawsuit can sometimes proceed on the basis of a merely threatened prosecution. But unlike in, say, Steffel—where the plaintiff was told he would be prosecuted if he distributed handbills at a certain shopping center, 415 U.S. at 455—adjudicating whether federal law would allow an enforcement action here would require us to determine the legality of state action “in hypothetical situations.”13 Morales, 504 U.S. at 382. And of course, “[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976) (plurality opinion). “A preliminary injunction is not appropriate, however, ‘unless
In sum, as underscored by Hood‘s apparent need to gather considerable information before he can determine whether an enforcement action is warranted, the prospect of one is not sufficiently imminent or defined to justify an injunction. See O‘Shea v. Littleton, 414 U.S. 488, 499 (1974) (explaining that enjoining a state‘s criminal processes is inappropriate absent “a showing of irreparable injury which is ‘both great and immediate‘“); Boyle v. Landry, 401 U.S. 77, 81 (1971) (“[T]he normal course of state criminal prosecutions cannot be disrupted or blocked on the basis of charges which in the last analysis amount to nothing more than speculation about the future.“).
IV.
We conclude that the district court erred in granting injunctive relief because neither the issuance of the non-self-executing administrative subpoena nor the possibility of some future enforcement action created an imminent threat of irreparable injury ripe for adjudication. We express no opinion on the reasonableness of the subpoena or on whether the conduct discussed in the parties’ briefs could be held actionable consistent with federal law. The district court‘s preliminary injunction is VACATED, and this case is REMANDED with instructions to dismiss Google‘s claims challenging the administrative subpoena and its claims seeking injunctive relief against future enforcement actions.14