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Sunday, December 12, 2021
California threatens to follow Texas
California Governor Gavin Newsom reacted to SCOTUS's decision in WWH by announcing plans to create an SB8-style law making actionable the manufacture, sale, or distribution of assault weapons or ghost gun kits or parts. Everyone is trotting out the told-you-so's, as we see the slippery-slope prophecy realized. Except for the lefties insisting that the five Justices who rejected most offensive claims in WWH will find a nonsense distinction in this case.
I would be shocked if this produces a formal bill, much less a law, as opposed to Newsom grandstanding. Especially if the few pending SB8 actions move forward to their appropriate and inevitable defeat, perhaps followed by successful § 1983 damages actions against those plaintiffs. This strategy cannot work in the long term; judicial procedure is equipped to address and vindicate rights in a defensive posture. Litigation takes time, energy, and resources--which is what the objections to these laws are about.
The irony of the first threat coming from California, of course, is that California's pre-2004 consumer-protection laws authorized "any person" to sue for damages against false advertising. When a plaintiff sued Nike over false statements in what clearly should have been understood as non-commercial speech (addressing public controversy over its foreign-child-labor practices), no one questioned the lawsuit, and the First Amendment issues, playing defensively in state court. Justice Breyer wrote a blistering dissent from the DIG, but never doubted that it was proper for California to rely on private enforcement of its laws, even by someone lacking any injury.
Posted by Howard Wasserman on December 12, 2021 at 11:10 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink
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