The Sixth Circuit affirmed an injunction prohibiting Tennessee from enforcing a law prohibiting “recruiting” minors (i.e., providing truthful information about how) to obtain lawful abortions outside of Tennessee. The majority affirmed a universal injunction for two reasons–the law was overbroad and it raised concerns of interstate federalism (one state infringing on the power of another) rather than horizontal separation of powers as in CASA. Chief Judge Sutton dissented on the merits (he argued that plaintiffs’ speech does not violate the law, properly construed) and on scope..
Unsurprisingly, I believe Sutton (pp. 69-72) has the better of the exchange than the majority (pp. 40-45)
Adopting universal (rather than nationwide) recognizes that party particularity and complete relief apply to all injunctions in constitutional cases, not only challenges to federal law. Universality captures all beyond-the-plaintiff injunctions, with variance only in the size of the universe. But the principle of party particularity should not vary with the targeted law. I am amazed a court could go a different direction on this point in the face of CASA‘s categorical language.
Overbreadth goes to the merits. It allows a party to prevail on a First Amendment challenge to a law even where the party’s speech is unprotected where the law regulates a wide range of other people’s protected speech. And it may create binding precedent that makes obvious the outcome of future enforcement efforts. But the remedy–stopping enforcement of the law–remains particularized to the plaintiff. That should be obvious from United States v. Stevens (which the majority emphasized in discussing overbreadth); although Stevens’ animal-crush videos might have been unprotected, he could get the Court to rule that the law was constitutionally invalid because it could have reached other people’s hunting videos. But the remedy was singular to Stevens–dismissing his prosecution. The rest was a matter of precedent applied to future enforcement efforts.