[1.] I think the civil liability scheme imposed by Texas’s SB 8 is likely unconstitutional: It’s inconsistent with the abortion rights recognized in Planned Parenthood v. Casey (1992), and the “undue burden” defense in the statute is likely too narrow to save it. Moreover, I think such state “private attorney general” laws that basically allow any person to sue over alleged illegal conduct are unfair to defendants. Indeed, Justice Breyer’s dissenting opinion, joined by Justice O’Connor, in Nike, Inc. v. Kasky (2003) — a case involving a similar speech-based “private attorney general” lawsuit over supposed false advertising—strikes me as quite plausible, and applicable here: The delegation of state authority to private individuals authorizes a purely ideological plaintiff, convinced that his opponent is not telling the truth, to bring into the courtroom the kind of political battle better waged in other forums. Where that political battle is hard fought, such plaintiffs potentially constitute a large and hostile crowd freely able to bring prosecutions designed to vindicate their beliefs, and to do so unencumbered by the legal and practical checks that tend to keep the energies of public enforcement agencies focused upon more purely economic harm. That threat means a commercial speaker must take particular care—considerably more care than the speaker’s noncommercial opponents—when speaking on public matters. A large organization’s unqualified claim about the adequacy of working conditions, for example, could lead to liability, should a court conclude after hearing the evidence that enough exceptions exist to warrant qualification—even if those […]
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