Sanity Is "Attempting A Comeback", In The Sixth Cir., For The Good, Kind, Open-Minded People Of Tennessee (The Clear Majority)...

Late last night, the able lawyers for Friends of George's filed in the Sixth Circuit, to have the whole court rehear this matter, en banc. That is -- with all the members of the court -- not just the two or three hardest right ones.

The reasoning is plain -- and may well prevail: the hard right members picked up their pens, and on their own, rewrote the statute Gov. Lee signed -- taking the most onerous parts of it out (weakening it, and making it not the law Tennessee actually passed), solely to prevent a successful challenge by George's, on US Constitutional grounds. Even so, should George's not be granted an en banc rehearing, it seems clear the plaintiffs will get cert. in the Supremes -- and it seems they will file there, if need be. Here's the muscular 63 page overnight filing -- and a bit:

. . .First, in concluding that FOG lacked an injury in fact, the panel rewrote the Tennessee Act -- adopting two different limiting constructions at odds with the statutory text and foreclosed by decisions of the Tennessee Supreme Court. The Supreme Court and this Court have repeatedly held that federal courts “may impose a limiting construction on a statute only if it is ‘readily susceptible’ to such a construction.” United States v. Stevens, 559 U.S. 460, 481 (2010). And a federal court must be especially wary of rewriting a state statute, lest the court “trample on the principles of federalism.” Entm’t Prods., Inc. v. Shelby Cnty., 588 F.3d 372, 387–88 (6th Cir. 2009) (quotation marks omitted). In rewriting the Tennessee Act, the panel contravened these precedents. . . .

Second, the panel heightened the standard for establishing the likelihood of enforcement. This Court’s precedent requires a plaintiff to establish (1) “a substantial probability that the plaintiff actually will engage in conduct that is arguably affected with a constitutional interest,” and (2) “a certain threat of prosecution if the plaintiff does indeed engage in that conduct.” Crawford v. U.S. Dep’t of Treasury, 868 F.3d 438 (6th Cir. 2017) (emphasis omitted). Yet in this case, the panel conflated these requirements -- demanding near certainty that FOG would engage in the conduct in the first place, as well as the prosecutor’s specific expression of intent to prosecute FOG in particular.

This too contravened binding precedent, which does not require the showing that the panel demanded. As a result of the panel’s decision, Friends of George’s can protect itself from criminal prosecution only by censoring its First Amendment-protected expression. More generally, the panel’s decision risks foreclosing a wide range of pre-enforcement challenges to plainly unconstitutional restrictions on speech -- forcing speakers to adopt “a cautious and restrictive exercise of First Amendment freedoms.” Counterman v. Colorado, 600 U.S. 66, 75 (2023). . . .

Now you know. Onward, smiling widely. Get 'em!

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