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this post was submitted on 05 Aug 2023
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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. "Strict scrutiny" is not some get-out-of-jail card that allows commercial entities to say whatever they want, particularly if they are being deceptive. There is a federal agency, the FTC, that is mostly intended to regulate commercial speech.
If you think the plaintiffs should be allowed to decieve potential clients in this case that's your prerogative, but plenty of legal scholars would disagree.
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 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 deceptive and maybe it isn't. That's up to a jury to determine. But either way, the law stands.
In other words, it's entirely possible that their speech is not deceptive but someone else's is deceptive. The law would only apply to the latter.
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?