More on SB8 and its imitators: NYT v. Sullivan as Historical Analogue

Houston Law Review has published Solving the Procedural Puzzles of the Texas Heartbeat Act and Its Imitators: New York TImes v. Sullivan as Historical Analogue, Rocky and my third piece in this series. This argues that the events leading to NYT v. Sullivan--a campaign of private civil litigation designed to chill conduct through costly litigation and liability--offer an historical analogue for SB8 and the imitators popping up in other states and on other issues. We do not defend or support what Sullivan and other Southern officials did in the early 1960s. The point is that it did not require offensive litigation or special procedures in federal court; the Times could and did defend in state court and pursue (successfully) their constitutional rights defensively. And those ordinary processes are available for current controversies.

Here is the abstract:

The Texas Heartbeat Act (S.B. 8) prohibits abortions following detection of a fetal heartbeat while delegating exclusive enforcement through private civil actions brought by “any person,” regardless of injury, for statutory damages of a minimum of $10,000 per prohibited abortion. Texas sought to impose costly litigation and potentially crippling liability on reproductive health providers and rights advocates, with the hope of stopping abortion in the state. Prior to Dobbs v. Jackson Women’s Health Organization overruling Roe v. Wade and eliminating constitutional protection for abortion, the law represented a unique threat to reproductive freedom. But states are spreading S.B. 8’s exclusive private enforcement mechanism to other disfavored-but-protected activities, seeking to impose private civil liability.

This Article—the third in a series unpacking the procedural puzzles of S.B. 8 and its imitators—considers the historical analogue of New York Times v. Sullivan, the Court’s foundational modern free speech case. New York Times arose out of a southern campaign to use state defamation law and private civil litigation to silence media outlets from reporting on Jim Crow and the Civil Rights Movement. That southern litigation campaign and S.B. 8 supporters shared a goal—deter locally unpopular but constitutionally protected activity through threat of hundreds of lawsuits and devastating civil liability and monetary exposure. But the defendants in New York Times could not and did not go to federal court ahead of any private lawsuit or seek to functionally enjoin the state’s trial courts. The Times litigated the First Amendment defensively, with successful review to the Supreme Court of the United States. Contrary to the views and concerns of critics of S.B. 8 and new copycats, rights holders can follow the same process to challenge the substantive validity of privately enforced laws. The history of New York Times shows the way.