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Thursday, September 03, 2020

Universality, facial invalidity, and the First Amendment

I am a couple of days late to this Third Circuit decision declaring invalid as-applied, but not facially, the age-verification, labeling, and record-keeping requirements of the Child Online Protection Act. But the court reversed on scope-of-injunction, limiting the bar on enforcement to the named plaintiffs.

Two bits of good news. The court dropped a footnote that "nationwide" is the imprecise term, citing Justice Thomas' Trump v. Hawaii concurrence that the problem is not geographic scope but "universal character." And the court ended in the right place--with an injunction particularized to the individual plaintiffs.

The bad news is how it got there. These plaintiffs--journalists, commercial photographers, and producers of sex-education materials--were niche actors and different from typical players in the pornography industry. Given their unique facts and positions, the remedy protecting them should not protect differently situated actors. But that should not matter. Even if non-party pornographers were similarly situated to the plaintiffs, absent class certification, the injunction should not protect beyond the plaintiffs; it is unnecessary to accord complete relief or to remedy the violation of those plaintiffs' constitutional rights.

One point of confusion is that two associations--the Free Speech Coalition and the American Society for Media Photographers--were plaintiffs in the case, although their claims were dismissed for lack of associational standing. An injunction protecting an associational plaintiff can become broader, as in protecting the association it must protect its members (Michael Morley describes this as a de facto class action). But this injunction never protected the associations, who lacked standing. But that proves the point. There is no reason to consider the organizations' standing if the injunction protects them at the end of the day. Particularity in the injunction is more consistent with the other rules of civil litigation.

Posted by Howard Wasserman on September 3, 2020 at 03:25 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink

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