Dear California Governor Newsom and Attorney General Bonta: you really don’t have to be the opposite end of the extremists in Florida and Texas. You don’t have to lie to your constituents and pretend losses are wins. Really. Trust me.
You may recall that the Attorneys General of Texas and Florida have taken to lying to the public when they lose big court cases. There was the time when Texas AG Ken Paxton claimed “a win” when the Supreme Court did exactly the opposite of what he had asked it to do.
Or the time when Florida AG Ashley Moody declared victory after the Supreme Court made it quite clear that Florida’s social media law was unconstitutional, but sent it back to the lower court to review on procedural grounds.
And now it looks like Newsom and Bonta are doing the same sort of thing, claiming victory out of an obvious loss, just on the basis of some procedural clean-up (ironically, the identical procedural clean-up that Moody declared victory over).
As you’ll recall, we just wrote about the Ninth Circuit rejecting California’s Age Appropriate Design Code (AADC) as an obvious First Amendment violation (just as we had warned both Bonta and Newsom, only to be ignored). However, because of the results in the Supreme Court decision in Moody, the Ninth Circuit sent some parts of the law back to the lower court.
The details here are kind of important. In the Moody decision, the Supreme Court said for there to be a “facial challenge” against an entire law (i.e., a lawsuit saying “this whole law is unconstitutional, throw it out”), the lower courts have to consider every part of the law and whether or not every aspect and every possible application is unconstitutional. In the Texas and Florida cases, the Supreme Court noted that the lower courts really only reviewed parts of those laws and how they might impact a few companies, rather than really evaluating whether or not some of the laws were salvageable.