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Friday, November 10, 2017

Procedural posture in First Amendment cases (Updated)

Update: Note the clarification below, as I was not precise enough. The questioner was asking about cases in which a preliminary injunction was sought and denied. In White (and one case I thought of, Simon & Schuster), the plaintiff did not move for a preliminary injunction. Instead, the parties went straight to cross-motions for summary judgment on permanent injunctive relief.

A question was asked of me: Can we think of significant First Amendment cases in which the lower courts denied a preliminary injunction barring enforcement of a law, then SCOTUS granted cert., reversed, and held that the challenged law is not enforceable?

The only one I could come up with off the top of my head is Steffel v. Thompson. And there the lower courts denied relief on standing and Younger grounds, never reaching the First Amendment merits.

Any cases that fit this description, where the lower courts declared the law constitutionally valid and declined to enjoin, then SCOTUS granted cert to reverse?

Posted by Howard Wasserman on November 10, 2017 at 12:07 AM in Civil Procedure, First Amendment, Howard Wasserman | Permalink


Republican Party of Minnesota v. White?

Posted by: CBR | Nov 10, 2017 3:21:18 PM

Rav v. St Paul and cohen v. California, though they weren't injunction cases.

Posted by: Hash | Nov 10, 2017 10:56:14 AM

Citizens United and McCutcheon, except the Court didn't grant cert; it had mandatory appellate jurisdiction.

Posted by: Asher Steinberg | Nov 10, 2017 1:13:32 AM

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