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Friday, October 22, 2021

Procedure makes strange bedfellows

Jonathan Adler writes about an amicus brief from the Firearms Policy Coalition supporting Whole Woman's Health cert petition (which the Court granted). The Coalition fears (although I am not sure with good reason) New York or California enacting a similar law targeting gun possession, one of the parade of copycat laws imagined.

I am curious if media groups will enter the fray, because the danger to them is more real than it is to gun owners.. The closest historical analogue to this is New York Times v. Sullivan, when government officials triggered a coordinated campaign of defamation lawsuits against Northern media that, before SCOTUS stopped it, produced judgments that would amount to about $2.7 billion in 2021 dollars). And given the noise about overruling New York Times, it is easy to imagine a state redefining defamation in a way inconsistent with NYT, leaving the press to challenge the law defensively in private enforcement suits. The defamation analogue is the best argument why there is nothing new in this law and certainly not the blatant due process violation. But how the Court decides WWH (more so than how it decides United States v. Texas) will affect the future of defamation litigation. If a would-be civil defendant can sue a judge arguing that the state law under which a private plaintiff wants to sue is constitutionally invalid, every potential defamation plaintiff will race to federal court in response to any hint of a potential defamation action.

In fact, media outlets and other speakers are worse off than abortion providers. The argument that SB8 plaintiffs act under color is strong; the providers' problem is that their target defendant (Mark Dickson, the head of East Texas Right to Life) has not brought an SB8 action. Defamation defendants have no such option--no one believes an ordinary tort plaintiff acts under color.

Posted by Howard Wasserman on October 22, 2021 at 05:34 PM | Permalink


If sued for defamation in Texas, media defendants have multiple defenses, including ability to move for dismissal and award of attorney's fees and sanctions under the Texas Citizen's Participation Act (TCPA), and prompt interlocutory appeal of an adverse ruling. See Tex. Civ. Prac. & Rem. Code ch. 27, Sec. 27.008 (appeal if no trial court ruling on TCPA motion to dismiss), Sec. 51.014(6) (interlocutory appeal of denial of MSJ).

CPRC Sec. 27.009. DAMAGES AND COSTS. (a) Except as provided by Subsection (c), if the court orders dismissal of a legal action under this chapter, the court:

(1) shall award to the moving party court costs and reasonable attorney's fees incurred in defending against the legal action; and

(2) may award to the moving party sanctions against the party who brought the legal action as the court determines sufficient to deter the party who brought the legal action from bringing similar actions described in this chapter.

In addition, there is the Defamation Mitigation Act, part of CPRC chapter 73 (Libel)

More fundamentally, as a matter of legislative politics, how likely is an SB8-type copycat enactment facilitating defamation suits if such act were to make every media outlet vulnerable to liability, or at least for the costs of defense and a constitutional challenge, and would contravene the extant policies that protect first amendment activity at the state level? See above.

By contrast, With SB8, it's just the abortion providers, allies, aiders and abetters, that face liability, not the entire medical profession. So, the sting of SB8 is much more narrow in scope than would be the case with a similar authorization for citizen suits in the area of libel.

Posted by: Wolfgang P. Hirczy de Mino | Oct 23, 2021 3:51:16 PM

1) Federal forum; 2) Shorter path to SCOTUS if I need it; 3) attorney's fees as prevailing party in a § 1983 action.

Posted by: Howard Wasserman | Oct 23, 2021 8:04:38 AM

Why would a potential defamation defendent race to federal court to challenge the constitutional legitimacy of defamation laws (more than they already do at least). Unless you think that you have a strong case wouldn't it just be a waste of money? Also, you are limited to the facial challenge and don't have the benefit of an appealing set of facts (u can settle the bad fact cases and strategically wait for a good case if you fear losing). Seems to me that the primary reason to challenge SB 8 offensively rather than defensively is the fact that those likely to be sued aren't the well resourced national orgs with the ability to defend but the particular docs, nurses etc in their individual capacities as well as the nearly unlimited set of potential plantiffs. In a situation where only the particular injured party can sue just waiting and countering defensively will often be a decent strategy no?

Posted by: Peter Gerdes | Oct 23, 2021 1:46:18 AM

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