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Monday, July 31, 2023

Peak scope-of-injunction confusion

Judge Presnell (M.D. Fla.) may have produced the singularity of scope-of-injunction confusion in refusing to narrow-and-stay his injunction prohibiting enforcement of Florida's anti-drag law. The plaintiff is the owner of an Orlando restaurant that presents drag performances; the court preliminarily enjoined state officials (properly) from bringing "any enforcement proceedings" (improperly). The state sought to stay the injunction to the extent it went beyond the plaintiff--which Presnell describes as "neuter[ing]" the injunction.

Presnell emphasizes the law's facial invalidity in justifying the scope of the injunction. In doing so, he commits several category errors.

• The court relies on overbreadth cases allowing rights-holders to challenge a statute because of the statute's broader effects. But First Amendment overbreadth does not expand the scope of the court's order. It allows a rights-holder whose speech could be constitutionally regulated by the challenged law to raise the law's constitutional invalidity because it would be constitutionally invalid as to someone else's speech. Overbreadth allows a party to make constitutional arguments and to gain judicial relief based on those arguments about how the law affects non-parties. But nothing in that doctrine extends the judicial remedy to those non-parties; it merely gives the party additional arguments.

    Many overbreadth cases are not § 1983 offensive pre-enforcement actions; they are enforcement actions in which rights-holders raise the First Amendment as a defense (despite the defendant engaging in unprotected activities). Although the overbreadth arguments are the same, no one believes that an order dismissing a state enforcement action (e.g., a prosecution of the corporation or an attempt to strip its liquor license) protects anyone beyond that party.

    Here lies the benefit of Henry Monaghan's justification for overbreadth--valid law due process. Due process requires that any law be constitutional valid before it can be enforced against anyone, even if those constitutional defects do not affect the party to the case. This explains why an Carol Anne Bond could raise federalism defects in a chemical-weapons ban.

• I am not entirely sure why the court went the overbreadth route here. Nothing the plaintiff wants to host in its restaurant falls outside constitutional protection--it is not obscene or obscene-as-to-older-minors; this is not a case of a plaintiff arguing "my speech is unprotected but the law reaches other people's protected speech." The law is overbroad in the sense of not narrowly tailored, but that is a different thing.

• The court relies on Califano v. Yamasaki as to the availability of facial challenges. But it ignore the parts of Califano that the injunction should provide "complete relief to the plaintiffs." However constitutionally invalid the law might be or however broad the constitutional arguments he can make, the remedy benefits the plaintiff. And allowing continued enforcement of this law against others does not deny the plaintiff complete relief.

• The court conflates, in the most explicit language I have seen, geographic and party scope. The court says the following:

    • Responding to Eleventh Circuit doubts about so-called nationwide (but really universal) injunctions, the court says this "injunction is neither nationwide, nor does it pertain only to a limited class of individuals."

    • This law is not limited to a discrete universe of plaintiffs; it could apply to the vast majority of Floridians.

    • "To limit Defendant’s enforcement of the Act only to Plaintiff would subject everyone else in Florida to the chilling effect of a facially unconstitutional statute. Consequently, a statewide injunction which includes non-parties accords with the extent of the violation established."

The court expressly conflates nationwide/statewide and university. Every injunction as to a federal law is nationwide and every injunction as to a state law is statewide--the injunction prohibits enforcement of the law against the plaintiff every place in the nation/state that plaintiff goes.* Thus, of course this injunction is and should be  statewide--Florida cannot enforce this law against any restaurant that HM Florida, LLC owns and operates. But Presnell issued a universal injunction, one that protects everyone everywhere; that is the problematic piece of this.

[*] And out of state, but the protection against that comes from the limits of a law's extraterritoriality, not the injunction.

Again, this is why nomenclature matters and why the wide adoption of "nationwide" confuses the analysis. This injunction suffers the  identical defect as the Mifepristone or student-loan or sanctuary-city injunctions against federal laws and regs--it protects beyond the plaintiffs without class certification. But because we have used "nationwide" to describe those, Presnell could purport to distinguish those cases and thus the doubts about those injunctions--"those were nationwide injunctions, whereas this injunction is statewide."

• On the court's reasoning, the more people subject to a law, the more people whose rights the law infringes, and thus the more proper a universal injunction. That means that universal injunctions should be the norm, at least for laws of general applicability. But that would undermine the principle that enjoining a prosecution as to one person leaves the state free to prosecute others. And it renders FRCP 23(b)(2) useless--if a state can enjoin enforcement against everyone subject to a law when one person sues, no plaintiff would ever need or want to certify a civil-rights class.

• This also demonstrates how universal injunctions allow individual judges to arrogate a great deal of power, at the expense of other courts--to play constitutional hero. Yes, this law chills the speech of many, many people. The remedy for that is for any chilled speaker to sue and obtain an injunction protecting itself against enforcement (as the plaintiff did here) and for the opinion in one case to guide future courts handling future lawsuits from other speakers asserting their rights and seeking a remedy that protects them. If Presnell is right about the law's validity, his opinion in this case will persuade other judges to reach the same conclusion and issue injunctions protecting future plaintiffs. Moreover, if Presnell is wrong about the law's constitutional validity, his single order deprives any other judge or court from the opportunity to address that question.

Bad all around. While I hope the 11th Circuit affirms that the drag laws are constitutionally invalid, I also hope it corrects as to the scope of the injunction. Meanwhile, I wish courts would get this stuff right so I do not have to keep defending the authoritarians in Florida's government.

Posted by Howard Wasserman on July 31, 2023 at 02:41 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink

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