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.
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.
You’re assuming facts that have yet to be adjudicated.
If the relevant facts are yet to be adjudicated, then there was no basis for an injunction against this law.
Unless, of course, it were preliminary.
A preliminary injunction must be based on the strong likelihood that the plaintiffs will prevail.
If there are not any relevant facts yet, then there is likewise no basis even for a preliminary injunction.
Who said the facts don’t exist?