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.

  • FlowVoid
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    1 year ago

    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):

    At the outset, we must determine whether the expression is protected by the First Amendment. For commercial speech to come within that provision, it at least must concern lawful activity and not be misleading.

    The Illinois law bans deceptive speech by certain companies trying to gain clients, and therefore it does not violate the First Amendment.

    • Melllvar@startrek.website
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      1 year ago

      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?

      • FlowVoid
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        1 year ago

        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.

          • FlowVoid
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            1 year ago

            If the relevant facts are yet to be adjudicated, then there was no basis for an injunction against this law.

              • FlowVoid
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                1 year ago

                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.