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naraburns  nihil supernum  1yr ago (text post)   32159 thread views

Culture War Roundup for the week of January 23, 2023

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This is why SCOTUS should have taken the opportunity to craft a remedy for pre-enforcement challenges of laws that create civil liability. As it is now even if MindGeek thought the law was unconstitutional (I think they'd have a good case) they can't do anything about it until someone attempts to bring an enforcement action. Post SB-8 legislatures can just create these legal Swords of Damocles to hold over the heads of people engaged in constitutionally protected activity that they have no way to proactively remove.

I think it's tempting and generally hate the modern standing jurisprudence anyway (and even adjacent procedural stuff: Younger reflected far more immediately dangerous conditions to the plaintiff, does not leave near an acceptable escape valve, and is more generally a complete abomination to justice), but I'm not sure this is a driver here.

It would be incredibly trivial to produce a perfectly-ideal test involving the most sympathetic case possible and nominal damages, it'd be easy to argue, and it'd defang a ton of the 'no one would do that' arguments. I'd be a little surprised if there's no such test case already in the works. That's one of the downsides to civil cases: as with big cy pres giveaways or sue-and-settle, the courts have very little defense to friendly plaintiffs.

A victory there just would a) take forever, and b) not do much.

Traditional civil claims can be stopped by sufficient precedent once a test is available; anyone bringing future cases should get slapped down and potential face significant personal liability for frivolous suit. The problem for Whole Woman's Health was that the short timelines, chilling effects of even unsuccessful cases, and statute's bias on court costs would leave any even quickly successful defenses as Pyrrhic. This is why the plaintiffs' main relief requested the federal courts to prohibit state court clerks from accepting certain classes of complaint under a complex class-action theory and enjoin anyone in Texas from filing, and the other (8-1 SCOTUS-permitted!) requests against state licensing officials were seen as a meaningless.

But those problems are not unique. Civil torts emphasizing protected speech or other constitutionally-protected actions are not new, and even where they did allow state actors to bring enforcements (and even where they do have the same thumb-on-scales re: court costs), courts have not jumped head over tail to solve them. Hell, for some topics, even when federal statutes prohibit the civil suits as a class, not only do you still see people bringing countless spurious suits without facing serious injunction or sanction, you end up finding judges willing to accept increasingly bizarre theories justifying new exceptions to those bans.

I think there's good reason to argue against that standard of practice, but I don't think it's correct to recognize it as a new practice, and as a result, it's hard to call it intolerable when a lot of people have been dealing with it for decades.

If I recall, SCOTUS didn’t say “this is fine.” They just said we want this to work up through the circuits in a less expedited manner.

They definitely ruled that there was no available pre-enforcement relief, practically if not explicitly, which is all I'm contending.

I don't think that's an accurate summary :

The Court concludes that the petitioners may pursue a pre-enforcement challenge against certain of the named defendants but not others.

or

Even aside from the fact that eight Members of the Court agree sovereign immunity does not bar the petitioners from bringing this pre-enforcement challenge in federal court, everyone acknowledges that other pre-enforcement challenges may be possible in state court as well. In fact, 14 such state-court cases already seek to vindicate both federal and state constitutional claims against S. B. 8—and they have met with some success at the summary judgment stage.

The crux was instead that the Court turned away the sort of response that the plaintiffs would have found sufficient, whether in a pre-enforcement context or otherwise. The plaintiffs wanted -- with reason! -- an injunction binding either all court clerks from accepting, or all individual Texans, from filing cases.

That's why I said "practically if not explicitly." The only entities SCOTUS allowed the pre-enforcement challenge to go ahead for were a set of state licensing officials. No injunction on them would actually have any impact on the civil suits that are at the core of SB8.

SCOTUS only allowed the pre-enforcement challenge against state licensing officials in that case. But even Thomas pointed to extant state pre-enforcement challenges leading to preliminary injunctions by name, and that specific case he cited (correctly, imo) resulted in a state-wide declaratory judgement before the end of the year focusing on the procedural aspects and edit: eventually got a temporary injunction against the named plaintiffs and affiliates in that case (though I can't find the current disposition).

Fair enough, I guess I'm reluctant to farm out the vindication of federal constitutional rights to state courts (though I recognize that has been common practice). I suppose state courts (at least in Texas) seem to have the benefit of issuing declaratory judgements.

Instinctively, I like this--SB8 was an affront to jurisprudence that loomed over me, personally. I want to say there was a similar preemptive ban of something in Florida, but I'm drawing a blank.

Maybe this should be handled by the existing apparatus of civil law, but does that have a solution either? One of the big fish in my industry has been handing out retention bonuses with an outrageous noncompete clause attached. Every senior engineer I've heard discuss the subject mutters how it would never stand up in court...followed by observing that no one wants to spend months of their life fighting the big boys in court. This suggests no easy remedy to a power player (like a state) drafting a giant land mine for people who might hypothetically end up taking that road. Or at least no remedy easily understood by the voting public.

Generally the way this gets equalized is that some state or federal agency is empowered to press civil claims on behalf of individuals who've been injured. The SEC, for example, has the power to bring civil actions against entities for securities fraud so that injured parties, who may not have the resources to bring such suits, don't have to. It isn't really clear who would be in this position with respect to States passing laws like SB8. The federal government argued, in United States v. Texas, that they are empowered to sue states to vindicate their citizens constitutional rights but we didn't really get a definitive ruling. A district court granted an injunction, the Fifth Circuit stayed that injunction, SCOTUS granted cert then dismissed the grant of cert as improvidently granted (so, without reaching any merits). The United States then voluntarily dismissed the case this August (presumably it was moot post-Dobbs).

Personally I think both permitting the federal government to sue states to vindicate individuals constitutional rights and expanding In Re Young to permit federal courts to enjoin state courts from hearing those suits that violate constitutional rights are good ideas.

Post SB-8 legislatures

I don't think SB-8 was the first law to try to create civil liability for third parties. The mechanism is also used (and abused) for things like ADA accomodations and IIRC some of California's civil rights laws. While some might be okay with throwing these out concurrently, the scope would need to be much larger than I think you mean to imply.

Although I would in general agree that hanging vague metaphorical swords over otherwise law-abiding citizens is an undesirable state of affairs.

I agree that SB8 was not the first law to place civil liability on some third party behavior, but I think it was one that was very blatant in going after what was (at the time) constitutionally protected behavior. It's not clear to me what similar constitutional rights one has that are violated by ADA accommodations, or civil rights laws.

I'm also not saying all such laws ought to be unconstitutional, merely that the status quo of lacking a pre-enforcement mechanism permits state legislatures to chill constitutionally protected behavior with impunity. I'm confident that ADA accommodations and civil rights laws would withstand such a pre-enforcement challenge. I'm much less confident the Louisiana law in question would.

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