The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
[1.] I think the civil liability scheme imposed by Texas's SB 8 is likely unconstitutional: It's inconsistent with the abortion rights recognized in Planned Parenthood v. Casey (1992), and the "undue burden" defense in the statute is likely too narrow to save it. Moreover, I think such state "private attorney general" laws that basically allow any person to sue over alleged illegal conduct are unfair to defendants. Indeed, Justice Breyer's dissenting opinion, joined by Justice O'Connor, in Nike, Inc. v. Kasky (2003)—a case involving a similar speech-based "private attorney general" lawsuit over supposed false advertising—strikes me as quite plausible, and applicable here:
The delegation of state authority to private individuals authorizes a purely ideological plaintiff, convinced that his opponent is not telling the truth, to bring into the courtroom the kind of political battle better waged in other forums. Where that political battle is hard fought, such plaintiffs potentially constitute a large and hostile crowd freely able to bring prosecutions designed to vindicate their beliefs, and to do so unencumbered by the legal and practical checks that tend to keep the energies of public enforcement agencies focused upon more purely economic harm.
That threat means a commercial speaker must take particular care—considerably more care than the speaker's noncommercial opponents—when speaking on public matters. A large organization's unqualified claim about the adequacy of working conditions, for example, could lead to liability, should a court conclude after hearing the evidence that enough exceptions exist to warrant qualification—even if those exceptions were unknown (but perhaps should have been known) to the speaker. Uncertainty about how a court will view these, or other, statements, can easily chill a speaker's efforts to engage in public debate—particularly where a "false advertising" law, like California's law, imposes liability based upon negligence or without fault. At the least, they create concern that the commercial speaker engaging in public debate suffers a handicap that noncommercial opponents do not.
At the same time, it is difficult to see why California needs to permit such actions by private attorneys general—at least with respect to speech that is not "core" commercial speech but is entwined with, and directed toward, a more general public debate….
One can raise the same objection to using the "private attorney general" in the context of abortion; this would be a substantive reason why SB 8 is unconstitutionally overbroad (though note that Justice Breyer's opinion was just a dissent, from the Court's decision not to hear the case for procedural reasons).
[2.] But when it comes to the procedure for challenging state civil liability schemes (focusing here on schemes where lawsuits are brought by nongovernmental plaintiffs), the legal rule seems to me to be quite well-settled. If you think that some civil liability rule is unconstitutional, you can challenge it—but only as a defense when you're sued, not through a preenforcement challenge.
We see this routinely, for instance, in First Amendment civil liability cases. In New York Times v. Sullivan, the New York Times successfully challenged Alabama libel law rules, on the grounds that they allowed public officials to sue based on honest mistakes of fact (and not just knowing or reckless falsehoods)—but only as a defense to a libel lawsuit, after the suit was filed. In Philadelphia Newspapers v. Hepps, the Philadelphia Enquirer successfully challenged a Pennsylvania statute that require libel defendants to bear the burden of proving their statements were true, but again only as a defense to a libel lawsuit. In Snyder v. Phelps, the Westboro Baptist Church people successfully argued that the Maryland "intentional infliction of emotional distress" tort unconstitutionally restricted speech on matters of private concern, but again only as a defense to a libel lawsuit. None of them could have filed a lawsuit up front in federal court seeking to declare the relevant tort law rules unconstitutional (whether on their face or as applied).
The same goes on today. A few months ago, I argued in the Oregon Supreme Court (on behalf of various academics, bloggers, and advocacy groups, as friends of the court) that the Oregon legal rule that denied certain First Amendment libel protection to "nonmedia" speakers was unconstitutional. But the defendant could raise that objection only as a defense to a libel lawsuit. A speaker in Oregon, or the two other states that follow this rule (Virginia and Wisconsin), can't launch a preenforcement challenge to the legal rule in federal court, at least until a particular plaintiff files a lawsuit or at least concretely threatens such a lawsuit.
Likewise, I have argued that, for instance, hostile environment harassment law sometimes violates the First Amendment. Some courts have agreed in some situations. But any such objections generally have to be litigated as defenses in employment law cases, not through a preenforcement challenge. To offer an oversimplified example (but one based on real life), imagine that a legislature passed a law saying, "Any employee who is offended by the display of a Confederate flag by any coworker may sue the employer for damages, and will prevail if a jury agrees that the display of the flag was severe or pervasive enough to create a hostile environment." That would be unconstitutional, I think; but I don't think an employer could challenge the law before it's enforced.
The same would be true as to lawsuits against gun manufacturers or gun stores over criminals' misuse of guns. A federal law, the Protection of Lawful Commerce in Arms Act, preempts most such lawsuits, at least so long as the guns were sold consistently with federal and state statutes. But if a gun manufacturer or gun store thinks that some state law civil cause of action (for negligence, nuisance, and the like) is preempted by the PLCAA, or for that matter by the Second Amendment, it generally can't go into federal court to get that cause of action struck down on those grounds. It would need to wait until it's sued, and raise the federal right as a defense (often in state court).
The conceptual legal point here is that, if I want to block the enforcement of some legal rule, I have to sue the enforcer. For criminal laws, that often means I can sue prosecutors for an injunction against their enforcing it.
But for civil liability, the plaintiff could be anyone. Until a particular plaintiff comes forward to sue, or at least to specifically threaten a lawsuit, there is no-one to sue. The eventual plaintiff is entitled to an opportunity to argue that the legal claim he is bringing is sound, but that eventual plaintiff is unknown. And one generally can't sue the judge who would eventually enforce the law, because our adversarial system of justice doesn't generally view the judge or the court as the adversary whom you can sue (at least until the judge has issued a specific decision that you are challenging, for instance through a mandamus action).
Now of course there are real costs to this approach to asserting federal constitutional and statutory rights: The threat of legal liability can create a powerful "chilling effect" on people's behavior, even before a lawsuit is filed. "[T]he value of a sword of Damocles is that it hangs—not that it drops." Moreover, this system makes it possible for the government to do what Texas did, and what other states have done in other contexts through "private attorney general" schemes: Shift enforcement of laws to private plaintiffs, and thus foreclose preenforcement challenges.
At the same time, for all its costs, our legal system has generally found the chilling effect of such civil liability to be bearable, given the opportunity (however imperfect it might be) to object to such liability once one is sued. Rightly or wrongly, this unavailability of preenforcement challenges to civil liability does appear to be the standard legal rule in our system. And while I do think that the private attorney general schemes, in which the plaintiff doesn't have to show any personal injury, are especially likely to be chilling, to my knowledge they can't be challenged through preenforcement challenges, either.
I may be mistaken; though I know a decent amount about such procedural rules (which are generally referred to under the rubric of "federal courts" rules, or just "Fed Courts," the common label for the class in which they are taught), this isn't my core area of expertise. If you can come up with precedents that would allow preenforcement challenges to such civil liability (again, civil liability in cases brought by nongovernmental actors), I would love to hear about it and perhaps use it. But that's my general sense of the matter.