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charonn0 ,
@charonn0@startrek.website avatar

This article is frustratingly vague on what the judge actually did. Probably because it’s not nearly as clickbaity. The judge has blocked enforcement of the new law until the lawsuit has been resolved. Given the 1st amendment implications that’s the right call for the judge to make even if the law is ultimately upheld.

FuglyDuck ,
@FuglyDuck@lemmy.world avatar

Let’s preface this with… “I dunno” cuz I’m not from Illinois and don’t know the actual text of the law.

However, if the law is indeed going after deceptive practices in clinics to prevent people from seeking medical care…

That should already be a crime.

Hoomod ,

I’m no lawyer, but I don’t think the first amendment gives you the right to lie to people with no consequences

Drusas ,

Sadly, it mostly does. There are exceptions, and being that this is related to medical care, it may be one of them.

billbasher ,

It grants you the right to lie as long as you aren’t violating an existing law. Regardless of job position or standing

charonn0 ,
@charonn0@startrek.website avatar

The first amendment is a limit on government power rather than a grant of individual rights. Consequently, lying is protected speech under most circumstances.

FuglyDuck ,
@FuglyDuck@lemmy.world avatar

“most circumstances” that don’t involve defrauding others for some reason.

For example, if these anti-abortion clinics are pretending to be abortion clinics and then lying about the services they provide- or the nature of those services, which they don’t even provide- to try and convince people not to get abortions…

that is fraud. and it constitutes harm. and absolutely should be treated as such.

another ‘its not actually protected’ that’s relevant is if they’re just telling absolute horror stories about, for example, women who regret having the abortion, or playing up severe complications while insisting they are in fact experts.

both are things anti-abortion clinics have done. I’m not saying these in particular are, but I’m not going to be terribly surprised to find they’re not

charonn0 ,
@charonn0@startrek.website avatar

I’m only commenting on how the first amendment should be interpreted when it comes to lying per se.

FuglyDuck ,
@FuglyDuck@lemmy.world avatar

but this isn’t about lying. this is about lying to prevent people who are seeking medical care from obtaining said medical care.

“Oh it’s okay they’re just lying” is an absurdity. they’re committing fraud, probably, and the new law seeks to address this because that this particular fraud is enough a problem that it needed it’s own law.

at least, that’s my outsider’s take on it.

charonn0 ,
@charonn0@startrek.website avatar

My comments here are about lying per se and whether they’re protected speech.

FuglyDuck ,
@FuglyDuck@lemmy.world avatar

In the context of fraud.

Shall I be more blunt? You’re full of shit.

Saying in an argument about fraud that dishonesty is protected speech is a bad faith argument. You’re allowed to lie, but you’re not allowed to break the law by misrepresenting and your business in business dealings.

There is a difference and your continued assertion that they’re the same and that the former is even relevant is bullshit. You’re also not allowed to pose as medical professionals and give patently false medical advice.

Regardless of what actions they’re taking, they don’t get to hide behind “free speech” which has never protected people from the consequences of said speech.

charonn0 , (edited )
@charonn0@startrek.website avatar

In the context of this conversation thread. To summarize it for you, this conversation thread is about the statement, “but I don’t think the first amendment gives you the right to lie to people with no consequences”. The answer is that generally yes it does.

You are too rude to have a meaningful conversation with, so this will be my last response.

Flaky_Fish69 ,
@Flaky_Fish69@kbin.social avatar

it absolutely doesn't.
Especially when you represent yourself as an expert or medical professional.
what these clinics are doing is medical fraud and malpractice... for the purpose of preventing women from getting lawful access to medical care. It's downright vile... and 50k fines is not enough. There should be jailtime.

quindraco ,

It depends on what these “clinics” entail. For example, if they charge money, existing fraud laws should cover it.

jeffw ,

Maybe I’m crazy, but I’m not sure what you mean.

It’s common in lawsuits such as this for one party to make a motion to block enforcement of the law pending the results of the case. In extreme cases, the judge may grant such an injunction. This all seems straightforward to me. Frankly, the title pretty much gives away the whole article, which is the opposite of what happens with clickbait.

charonn0 ,
@charonn0@startrek.website avatar

In the entire article, there’s only one sentence that even implies the decision isn’t a final ruling.

FlowVoid ,

U.S. District Judge Iain Johnston said Thursday the new law “is painfully and blatantly a violation of the First Amendment.”

That’s not a final ruling, but it absolutely telegraphs the final ruling.

resin85 ,

It’s always frustrating when these cases end up in the hands of Trump-appointed judges. More often than not they’re ruling based on their ideology rather than the law.

FlowVoid ,

I think you are underestimating the significance of the ruling. In cases like this, judges issue temporary injunctions if they believe the law will most likely be found unconstitutional when the lawsuit is resolved. The judge described the law as a “blatant violation of the 1st Amendment”, indicating that he will most likely issue a permanent injunction later.

So it’s only the “right call” if you agree with him. And if it matters to anyone, this judge is a Trump appointee.

charonn0 ,
@charonn0@startrek.website avatar

So it’s only the “right call” if you agree with him.

No. It’s perfectly reasonable to at once support women’s rights over their own bodies but also see serious first amendment questions in this sort of law.

A similar law that targeted abortion providers would be similarly problematic. If you don’t see it that way then you aren’t looking at the question from the perspective of the first amendment.

FlowVoid ,

Then you agree with him.

charonn0 ,
@charonn0@startrek.website avatar

If the question is whether a preliminary injunction is appropriate, then yes. A preliminary injunction preserves the status quo while the case is decided. Since the the law plausibly infringes the plaintiffs’ first amendment rights, the proper judicial decision is to preserve the status quo. This is the general rule applied to all cases of this nature and should not be construed as evidence of bias by the judge.

Really, my point in commenting has more to do with calling out the AP for sensationalist reporting than with the merits of the case being reported on.

FlowVoid ,

A preliminary injunction is appropriate if the plaintiffs are very likely to succeed. Otherwise you or I could block any new law by endlessly “preserving the status quo” with a stream of lawsuits.

So if you think that the preliminary junction is appropriate, then you must agree with the judge that the law very likely violates the First Amendment.

charonn0 , (edited )
@charonn0@startrek.website avatar

On the face of it, it probably does. Whether it actually does will require a careful legal analysis of the law’s intent, scope, and whether there are alternatives that the state could have used.

This does not mean I approve of the plaintiffs’ speech. This does not mean I disapprove. It means that I value the first amendment and understand it, and so do not see a problem in how it’s been applied in this case so far.

I’m discussing technicalities not arguing the merits of their case. If that’s not the sort of discussion you’re interested in then I suggest you find someone else.

FlowVoid , (edited )

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.

charonn0 ,
@charonn0@startrek.website avatar

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.

FlowVoid ,

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.

The First Amendment is not some get-out-of-jail card that allows commercial entities to say whatever they want, particularly if they are being deceptive. And strict scrutiny does not apply to commercial speech. That’s why there is an entire federal agency, the FTC, whose mission includes regulation of commercial speech.

There are even more restrictions on speech when health care is involved. If your doctor posts all your medical records to their blog, the First Amendment won’t protect them. If you sell a home remedy that you claim will cure cancer, the First Amendment won’t protect you. If someone lies about being a doctor and you consent to a physical exam on that basis, the First Amendment won’t protect them.

Maybe you think the First Amendment allows these particular plaintiffs to deceive potential clients about health care. Well, that’s your opinion. But plenty of legal scholars - and historical precedent - argue otherwise.

charonn0 ,
@charonn0@startrek.website avatar

By arguing that the law ought to be struck down

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.

FlowVoid , (edited )

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):

At the outset, we must determine whether the expression is protected by the First Amendment. For commercial speech to come within that provision, it at least must concern lawful activity and not be misleading.

The Illinois law bans deceptive speech by certain companies trying to gain clients, and therefore it does not violate the First Amendment.

charonn0 , (edited )
@charonn0@startrek.website avatar

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?

FlowVoid , (edited )

The answer is right there 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 misleading and maybe it isn’t. That’s up to a jury to determine. If it’s misleading, then they are breaking the law. If not, then they are not breaking the law.

But either way, the law stands. When you find someone not guilty of a crime, that doesn’t mean you throw out the law against the crime.

charonn0 ,
@charonn0@startrek.website avatar

You’re assuming facts that have yet to be adjudicated.

FlowVoid ,

If the relevant facts are yet to be adjudicated, then there was no basis for an injunction against this law.

charonn0 ,
@charonn0@startrek.website avatar

Unless, of course, it were preliminary.

FlowVoid ,

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.

charonn0 ,
@charonn0@startrek.website avatar

Who said the facts don’t exist?

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