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Friday, November 19, 2021

The Times plays defense and no one cares

Apropos of my post on the obviously First-Amendment-violative injunction the state trial court issued against The New York Times: No one has argued that The Times should be able to bring a federal action against Judge Wood to enjoin him from holding that hearing on the OSC or from further adjudicating the case. No one has argued that The Times can sue the clerk of the Supreme Court Court of the State of New York, County of Westchester to stop him from docketing the order or accepting further papers from PV in pursuing this case. It appears sufficient--for First Amendment, due process, and "judicial review" purposes--that The Times can defend in state court, appeal through state court, and reach SCOTUS if necessary. No one has argued that allowing PV to bring this private suit and to make The Times defend in state court "thwarts federal judicial review" of a significant constitutional issue.

Posted by Howard Wasserman on November 19, 2021 at 09:38 AM in Civil Procedure, First Amendment, Howard Wasserman | Permalink


No SB8 plaintiffs suffer any sort of real-world, common-law analogue injury. It does not matter to the analysis. If a state by statute wants to create a new tort of outrage enforceable in state court, it can. If a state by statute wants to prohibit conduct and delegate to random people, devoid of any injury besides outrage or ideological objection, to enforce that prohibition through civil lawsuits, it can (again, that is Nike v. Kasky). The only federal constitutional issue is whether imposing liability under the substantive "tort" is constitutional--going back to Nike, if Nike's speech was "commercial" or "political." If there is a constitutional problem with the state doing creating these torts or authorizing these injury-less suits, it is under state law and can be raised as a defense in the state-court proceeding. There are good arguments that SB8 violates the state constitution by authorizing random people to sue--but that is another defect to be raised as a defense in the private lawsuit. It does not render the state forum insufficient.

Alvarez, in a different context, maps onto Nike. Imagine a state prohibited false claims of military honor and created a private right of action for damages for anyone "offended" by such false claims. Such a claim must fail under the First Amendment, because false statements do not lose First Amendment protection, so imposing liability violates the speaker's First Amendment rights. But the lawsuit could be brought in state court and it would be on the speaker to raise the First Amendment as a defense to liability. No one would have thought to say that the person claiming false honors could sue the clerk of court or the state judge. Just as no one thought Nike could do that.

This is what SB8 does.

Posted by: Howard Wasserman | Nov 19, 2021 8:15:45 PM

You can save the standing 101 and federal vs. state jurisdiction explanation. I know that stuff too. What I actually meant was, literally, injury, just by itself, totally outside the context of a standing analysis.

Maybe to clarify more, let me give an example from caselaw. Standing wasn't an issue at all in U.S. v. Alvarez, but yet injury was discussed. The paucity of the asserted injury or the complete lack thereof—especially for the individual medal-holders—was, I think it's fair to say, an important consideration in both the plurality's and concurrence's analyses. So that's what I'm getting at. (And I think it's no coincidence the medal-holders' injury found insufficient in Alvarez—"offen[se]" caused by a pretender's lie—is about the best the SB8 proponents can muster in their case.)

Hopefully we're on the same page now when it comes to definitions. So, under that definition, do you still think SB8 plaintiffs suffer any real injury—aside from maybe "offense" at women seeking out abortions? You said "most ... probably have not" and I agree there, although I'm curious if that means you know of some examples where they actually did.

And, would you agree that injury's existence, its near nonexistence, or its complete absence, could be quite relevant to a legal analysis even outside the standing context?

Posted by: kotodama | Nov 19, 2021 7:43:32 PM

I knew he meant injury and so did I. Yeah, most SB8 plaintiffs probably have not suffered an injury. It doesn't matter. An injury is a constitutional requirement for federal court under Article III. State courts are not bound by Article III. They can adopt their own standing rules, including not requiring injury or not requiring injury when the legislature authorizes suit (the latter may describe the state of Texas law, although it's bit unclear). Again, see Nike v. Kasky. California's previous consumer-protection laws allowed "any person, regardless of injury" to bring a false-advertising claim, so a random person sued Nike in state court over a press release denying its child-labor practices; the case moved forward in state court.

Posted by: Howard Wasserman | Nov 19, 2021 3:45:03 PM

Prof. W., I'm going to assume Andrew was inadvertently being a little imprecise and meant to say "injury" instead of "standing".

On that assumption, do you disagree that an SB8 plaintiff haven't been injured in any meaningful sense of that word? Or is Person A in location X injured any time completely unrelated Person B over in location Y does a thing Person A dislikes? (I guess you could call that legal quantum tunnelling!)

If you agree there's no meaningful injury, is the lack thereof maybe an important factor/distinction to account for in a legal analysis?

On that note, I don't think it's any coincidence that SB8 was passed around the same time "Justice" Thomas now seems to find standing everywhere he looks.

Posted by: kotodama | Nov 19, 2021 3:09:33 PM

Not a constitutional requirement in state court, which can set its own standing rules. See Nike v. Kasky.

Posted by: Howard Wasserman | Nov 19, 2021 2:08:18 PM

Even a post viability lawsuit over someone having an abortion is likely unconstitutional because standing requirements are also a constitutional necessity--otherwise there is no case or controversy.

And of course we need not worry over any late-term abortions under the Texas law because no doctor, anywhere in the state, can perform abortions under its shadow.

Posted by: Andrew Santos Fleischman | Nov 19, 2021 2:06:06 PM

Except there are constitutional applications of SB8. A post-viability abortion is a post-heartbeat abortion. So a plaintiff could sue under SB8 over a 27th-week termination. That would be a constitutional application of the law.

The validity of the heartbeat ban (I believe it invalid) is beside the point. But I have been writing that for six months.

Posted by: Howard Wasserman | Nov 19, 2021 2:03:35 PM

It's hard to improve on what Andrew and J. said, but let me try a little.

Andrew's hypo is very much on point. In my view, though, SB8 is even more extreme in its facial unconstitutionality. The posited NY law would certainly violate 1A speech/press rights on its face. But it would violate one aspect of those rights. Nobody's right to speak, publish, or report on any countless number of other topics, or even to do those things about PV, but not in a critical way, would be affected in the slightest.

In contrast SB8 is designed to target and obliterate an entire constitutional right across the board. Nobody can exercise the abortion right whatsoever, period, full stop. Unless I'm missing something, the equivalent for free speech/press would be preventing people from talking or communicating about literally anything. So that's a whole separate dimension of facially unconstitutional.

Prof. W., I know you're really invested in your position, but can you finally concede there just might be a critical difference between (1) laws that have some unconstitutional applications, but plenty of constitutional ones too, which is where NYT v. Sullivan clearly falls, and (2) Andrew's/J.'s hypothetical one, or the actual SB8?

As to what the NYT could do in this actual case with PV, maybe I'm an outlier, but I'm not all that troubled if NYT sought to enjoin the NY state court in a federal action. Certainly, it could enjoin PV itself from pursuing the case further. I mean, didn't that ship already sail when TP did a similar thing with the Manhattan DA, and nobody, aside from the district court, seemed to think it was that big a deal? If that's kosher even when you're disrupting a state criminal investigation, then a fortiori it's permissible when it's only a mere civil case brought by a private litigant, right?

I guess I also just don't see why what legal avenues are available in theory is influenced by particular strategic litigation choices made by a single private litigant, here, the NYT.

Posted by: kotodama | Nov 19, 2021 1:59:47 PM

I would agree it imposes a chilling effect. I would not agree that it would provide a basis to sue judges and clerks to stop litigation from happening.

All litigation is case-by-case--courts don't issue global judgments. An injunction still is only going to protect the plaintiff who obtains it. Just as the judgment dismissing the lawsuit only protects the defendant in that suit.

Posted by: Howard Wasserman | Nov 19, 2021 1:52:34 PM

You would agree, though, that if New York passed a law making it illegal to criticize Project Veritas, set a million dollar fine, forbade fee shifting, and did not require standing to bring suit, and that stood for months or years, that this would have a substantial chilling effect, right?

Not everyone would have the money to litigate that issue on a case by case basis, and newspapers simply would not be able to run the risk of running those stories.

That's the difference between a facially unconstitutional law and one that is only unconstitutional as applied in some circumstances.

Posted by: Andrew Santos Fleischman | Nov 19, 2021 12:00:46 PM

And the Times won't be forced to publish a magazine for the next 16 years that it did not want, nor will there be any deterrence effect on any of the other news publishers, and none of their employees or contractors will be at risk. Sometimes the larger context matters.

Posted by: J. Bogart | Nov 19, 2021 10:02:08 AM

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