A federal judge has blocked a new Illinois law that allows the state to penalize anti-abortion counseling centers if they use deception to interfere with patients seeking the procedure.
A federal judge has blocked a new Illinois law that allows the state to penalize anti-abortion counseling centers if they use deception to interfere with patients seeking the procedure.
A preliminary injunction is appropriate if the plaintiffs are very likely to succeed. Otherwise you or I could block any new law by endlessly “preserving the status quo” with a stream of lawsuits.
So if you think that the preliminary junction is appropriate, then you must agree with the judge that the law very likely violates the First Amendment.
On the face of it, it probably does. Whether it actually does will require a careful legal analysis of the law’s intent, scope, and whether there are alternatives that the state could have used.
This does not mean I approve of the plaintiffs’ speech. This does not mean I disapprove. It means that I value the first amendment and understand it, and so do not see a problem in how it’s been applied in this case so far.
I’m discussing technicalities not arguing the merits of their case. If that’s not the sort of discussion you’re interested in then I suggest you find someone else.
I understand the technicalities.
I am simply pointing out that a preliminary injunction is not issued by routine in cases like this. Therefore, it is newsworthy rather than “clickbait”.
Furthermore, it strongly indicates how the case will ultimately be decided. So if you agree with the injunction, then you should agree with the plaintiffs in this case. If you disagree with the plaintiffs, then you have good reason to disagree with the injunction. Therefore, some people are rightfully very concerned about this news.
That is all. I am not interested in arguing the merits, either.
The article is clickbaity by being vague, not because the subject is not newsworthy.
And a preliminary injunction is routine if strict scrutiny should be applied. I agree that it probably should be applied based on the general characteristics of the law, and yeah the law will probably fall short of that standard and as such it ought to be struck down, but that does not in any way imply that I agree with the plaintiffs speech.
I didn’t say you agreed with the plaintiff’s speech, I said you agreed with the plaintiffs. Namely, that the law should be struck down.
By arguing that the law ought to be struck down, you are arguing the merits despite your protest earlier. In which case, there are plenty of restrictions on commercial speech that are in keeping with the First Amendment. For example, Elon Musk was sanctioned because of his speech regarding Tesla stock.
The First Amendment is not some get-out-of-jail card that allows commercial entities to say whatever they want, particularly if they are being deceptive. And strict scrutiny does not apply to commercial speech. That’s why there is an entire federal agency, the FTC, whose mission includes regulation of commercial speech.
There are even more restrictions on speech when health care is involved. If your doctor posts all your medical records to their blog, the First Amendment won’t protect them. If you sell a home remedy that you claim will cure cancer, the First Amendment won’t protect you. If someone lies about being a doctor and you consent to a physical exam on that basis, the First Amendment won’t protect them.
Maybe you think the First Amendment allows these particular plaintiffs to deceive potential clients about health care. Well, that’s your opinion. But plenty of legal scholars - and historical precedent - argue otherwise.
I’m saying it probably falls short of the standard and if so it ought to be struck down. If you can’t accept that I’m being sincere when I say that’s my whole fucking point, then I don’t know what else to say.
I don’t doubt your sincerity. But I think your legal analysis is wrong.
The correct standard here is not strict scrutiny, it is intermediate scrutiny. This is a much more permissive standard that applies to all commercial speech. And it allows restrictions on what one can say, in order to prevent deceptive practices like those I described.
The Supreme Court described their approach to commercial speech in 1980 (my emphasis):
The Illinois law bans deceptive speech by certain companies trying to gain clients, and therefore it does not violate the First Amendment.
Actually, it’s your legal analysis that is wrong. Because your analysis begs the very question that the court is trying to answer: is their speech protected?
The answer is right there in the quote by the Supreme Court. Commercial speech is not protected if it’s misleading. So by definition, a law that bans deceptive speech is constitutional.
In the case of these plaintiffs, maybe their speech is misleading and maybe it isn’t. That’s up to a jury to determine. If it’s misleading, then they are breaking the law. If not, then they are not breaking the law.
But either way, the law stands. When you find someone not guilty of a crime, that doesn’t mean you throw out the law that made something a crime.