State Laws and the Madness of “No Particular Duty to Enforce”

One effect of such rulings is leaving state laws on the books which likely wouldn’t survive court scrutiny, if only there were state officials with a duty to enforce that law, opening the statute to challenge. The “warning label” provision of Texas’ HB 1181 which was highlighted by US District Court Judge David Ezra in his order granting a preliminary injunction against enforcement of the law (an injunction which has since been stayed without explanation by the U.S. Court of Appeals for the Fifth Circuit), seems like textbook compelled speech. But if the same labeling requirement appeared in a law which created a private right of action, rather than something to be enforced by a state official, anyone looking to challenge the law would have to wait until they were named as a defendant in a civil suit to make such a challenge.

While perhaps a clever means of avoiding pre-enforcement court scrutiny, laws which create a private right of action are terrible public policy. In the case of the age-verification statutes, an entire industry is left waiting for the other shoe to drop, unable to take proactive measures to challenge the law before it is being used a cudgel against them in civil court.

In my view, these laws don’t offer much assurance to potential litigants who might target noncompliant adult sites, either. Since the courts refuse to assess the constitutionality of these laws in a pre-enforcement context, potential plaintiffs are left to guess whether the law under which they intend to sue is on solid footing in the first place.

Beyond that, there’s a facet to all this which I’m not sure has received the sort of attention it should: Our nation’s courts, civil and criminal alike, are themselves an institution and instrument of the government. For that matter, so are the state’s laws. That’s why questions regarding the First Amendment are even relevant in a civil case to begin with, after all; the instrumentality of the court in enforcing a civil judgment, and the fact such lawsuits would flow from state law, mean state government power essentially always has a role in these lawsuits, even if the government might seem like a passive, uninterested party.

As noted by attorney Ken White in his classic 2016 post “Hello! You’ve Been Referred Here Because You’re Wrong About The First Amendment” – a very valuable, informative and entertaining post which ought to be required reading in American schools – the Supreme Court long ago “noted that the First Amendment obviously applies to private civil actions that employ state power.”

Quoting the Supreme Court in the watershed case New York Times v. Sullivan, White observes the court held that “the test is not the form in which state power has been applied but, whatever the form, whether such power has, in fact, been exercised.”

“If you think about it even a little, this is the only sensible interpretation,” White writes. “Under a contrary interpretation, a state could pass a law saying that private parties could sue you for offending them, or annoying them, or for expressing certain political views the state disfavors. People could then use the coercive power of the courts to sue you based on those laws.”

While the context isn’t the same as White’s hypothetical, setting things up so that private parties can sue adult sites to enforce a law the state legally cannot enforce is precisely what these age-verification mandates do.

I still believe we’re unlikely to see many (if any) lawsuits filed under these state age-verification laws, in part because I think a lot of attorneys will look at the underlying law, assess it as likely to be struck down by the courts once used as the basis for a lawsuit and tell their prospective clients they might be better off filing a slip-and-fall suit against their local Walmart.

Until or unless someone does file such a lawsuit, we’re all in the same boat, potential plaintiffs and defendants alike: stuck wondering whether the legal underpinning of such lawsuits is a statutory house of cards, just waiting for someone to give it a toppling flick.

I believe the courts are concerned about the propriety and wisdom of these laws that create a private right of action, as well; they just feel constrained in their ability to do anything about the issue. To wit, in dismissing the FSC’s case in Utah, U.S. District Judge Ted Stewart, seemed to telegraph his own reservations about such laws.

“The Court acknowledges Plaintiffs’ concerns about the propriety of the legislature outsourcing the enforcement of laws that raise important constitutional questions,” Stewart wrote. “The wisdom of such policy decisions is best left to the other branches of government. It may be of little succor to Plaintiffs, but any commercial entity sued under S.B. 287 ‘may pursue state and federal constitutional arguments in his or her defense,’ they just cannot receive a pre-enforcement injunction against the two named Defendants.”

In my view, Stewart got it almost right there. Frankly, having the right to pursue state and federal constitutional arguments in my defense, maybe, someday, and (initially, at least) mostly on the terms of some random plaintiff who might be lurking out there, is no succor at all.