Two items on private enforcement.
1) The California legislature passed (and the governor is expected to sign) a bill authorizing private civil litigation and steep civil penalties against social media platforms that, through the algorithm, aid or abet political or other violence, sexual harassment, discrimination in places of public accommodation, and interference with exercise of constitutional rights.
California continues to be the one state trying to take WWH v. Jackson seriously and to match Red states in pushing constitutional litigation away from federal offensive actions and into the (supposedly more burdensome) posture of defensive nullification. Ironically, both sides of the political divide would like to target social media as this law does, just over different types of speech.
Not sure whether this will achieve the state’s procedural goals. Because the substantive provisions at issue are publicly enforced, this may not involve exclusive private enforcement and some opportunities for offensive challenges may remain.
2) Steve Vladeck’s latest newsletter criticizes the stay of an injunction in Trump v. Slaughter as reflecting a bad trend in which a party can show likelihood of success for interim relief (a preliminary injunction or stay) by showing that SCOTUS is likely to overrule controlling precedent.
He offers an example of the mischief this may create. He imagines a state eliminating actual malice from its defamation law, in light of Justice Thomas (and Gorusch to a lesser extend) itching to overrule New York Times v. Sullivan. In the new world SCOTUS has created, a district court might deny a preliminary injunction or a court of appeals might stay an injunction, because Sullivan is likely to be overruled.
But as Rocky and I discussed here, such a law (and Florida toyed with something like it in 2022) could not be challenged in federal pre-enforcement litigation. Defamation law, including with the proposed amendment, is enforced through private civil litigation, without action from the executive branch; a speaker would have no one to whom to pursue an EpY action and no one for the court to enjoin from enforcing the challenged law. This issue would be litigated through defensive nullification–a defendant speaker seeking dismissal of the action because applicable state law is constitutionally defective for lack of an actual malice element. The issues of injunctions and stays that define the shadow docket and SCOTUS’s procedurally dubious actions would not arise.
One gets pedantic with Steve Vladeck at one’s peril. But this touches on my ongoing views about the procedural sufficiency of constitutional litigation outside of equitable actions in federal court.