Notice a pattern? Florida filed (but never served after several months) consumer-protection lawsuits against the American Academy of Pediatrics and other medical organizations over their policy and legal advocacy supporting gender-affirming care. The district court refused to dismiss under Younger applying the bad-faith exception and preliminarily enjoined the state action; a divided Seventh Circuit refused to stay the injunction pending appeal, concluding that the district court did not clearly err in its Younger analysis.
This case and the Paxton case are similar and reflect a trend. MAGA state AGs target political speech and advocacy through state consumer-protection/deceptive-practices laws, reinforced with social-media and podcast rants about ending organizations whose speech they do not like. The targets are outside of Florida, allowing them to run to district courts (and circuits) outside of Texas/Florida. The federal courts apply Younger‘s bad-faith exception, concluding the state proceeding likely lacks merit because the targeted speech is political rather than commercial. And the MAGA AGs tip their hands about their political motivations through social-media activity.
Judge Robin Rosenbaum (11th Circuit) argued that we should reexamine Younger. It “has always had a First Amendment problem.” But the First Amendment’s evolution1 since 1971 has exacerbates that problem, allowing states to target state-disfavored core political speech (although by trying to frame it as something less). Rosenbaum noted that SCOTUS has never found a state to have initiated a prosecution in bad faith. Perhaps these cases represent lower courts pushing back at the margins in the face of extreme, politically motivated state enforcement.
- Early Younger cases involved communist speech (before we fully embraced Brandenburg) and pornography. ↩︎