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Tuesday, August 31, 2021

First Amendment concerns on the other side of SB8

It appears that a Texas state court has issued a TRO prohibiting a named individual (not Mark Dickson) and Texas Right to Life from bringing SB8 actions. I do not know what their cause of action was, nor do I know the breadth of what the judge ruled. Obviously the order cannot stop anyone other than the named defendants from bringing suit. And I do not know that Texas Right to Life was contemplating a lawsuit as much as gathering and providing information to individuals who might bring suits. A court enjoining those informational activities, distinct from filing the lawsuit itself, raises serious First Amendment problems--the same First Amendment problems created by possible SB8 lawsuits against rights advocates who provide information about where and how to procure services.

This is getting messy, in part because the reproductive-rights community is scrambling and no one wants to grasp the procedural issues hanging over this.

Posted by Howard Wasserman on August 31, 2021 at 12:31 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman | Permalink


If the group and the individual are just literally enjoined (or TROed, as it were) from bringing actions themselves, I don’t see how that’s really problematic.

Also, I see an obvious distinction between simply publishing informational materials to the general public and going a step further by inducing and/or working in concert with particular individuals/groups to bring actual suits. The former I could probably agree is protected 1A activity. The latter could easily be viewed as an attempt to circumvent a TRO/injunction and thus not necessarily protected.

Finally, can you explain what exactly is so wrong with the challengers’ litigation strategy? They know at the end of the day they’re facing an extremely hostile CA5/SCOTUS/TX SC, so why not rack up whatever wins they can in the meantime? If the go-for-broke strategy ekes out a few victories, even if only temporary, that still benefits their clients. As advocates, that’s exactly what they should be trying to do. What are the alternatives? Doing nothing obviously isn’t an option. And taking a more cautious or circumspect approach just gets you less in the interim, while still getting the same zilch from the aforementioned hostile forums as would happen with the aggressive strategy. So just on a basic cost benefit analysis, the go big approach has a lot to commend itself. With all due respect, I do think law professors sometimes don’t appreciate these practical realities of actual in the trenches litigating.

Posted by: kotodama | Aug 31, 2021 4:16:08 PM

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