Photo of Stephen McConnell

Like most judicial clerks (and, for that matter, judges) we found writing dissents more fun than writing majority opinions. Dissents free one from the need to articulate a consensus.  Moreover, since a dissent does not establish a precedent that others must at least pretend to follow, the dissent’s author can be less precise and can let the rhetorical fireworks fly.  To reverse the Spider Man rubric, with lack of responsibility comes great power to write colorfully.

We clerked on the Ninth Circuit.  The Ninth Circuit is often unjustly maligned. And yet the fact is that the Ninth Circuit more often than not gets things right.  Put another way, not every Ninth Circuit dissent hits the mark.  We certainly do not agree with the dissent to the denial of rehearing en banc in California Chamber of Commerce v. Council for Education and Research on Toxics, 2022 WL 14725243 (9th Cir. Oct. 26, 2022).  But it is a fun read. 

The underlying Ninth Circuit decision enjoined certain Proposition 65 litigation on first amendment grounds, and we discussed that decision last May.  Here is a brief refresher: Proposition 65 requires postings of warnings about substances “known to the state [of California] to cause cancer.” You see those warnings pretty much everywhere in California.  In truth, the warnings are so ubiquitous as to be useless.  

Even worse, Prop 65 has spawned endless litigation over products that are not “known”  to cause cancer — at least not known to anyone with a smidgen of scientific learning.  In this case, the Chamber of Commerce sued for an injunction against acrylamide litigation under Prop 65.  It argued that a compelled warning that was bunk violated the first amendment right not to speak.   And it was pretty clear that the acrylamide warning would have been a reach.  That is putting it politely.  Since we’re not polite, let’s put it more plainly: the proposed warning would have been bunk.  Many science organizations, including the National Cancer Institute, saw no evidence of cancer risk, while others saw some evidence — but the point was that the cancer risk was hardly “known.”  

The Council for Education & Research on Toxics stepped into the case as a private attorney general (ugh) and tried to make the case for the warning and against the injunction.  The Council lost.  What’s more, it lost in its too-clever-by-half effort to hijack the first amendment.  According to the Council, the first amendment right at stake was not the right not to say things that were probably false and against one’s interest but, rather, the right to file lawsuits.  According to the Council, the injunction against Prop 65 lawsuits was a “prior restraint” of its speech. 

The Ninth Circuit panel disagreed.  It held that there was no first amendment right to file a lawsuit with an “illegal objective.”  The Council argued that whether its objective was illegal could not be determined until after a full blown trial.  Again, the Ninth Circuit panel disagreed.  It held that “the preliminary injunction against likely unconstitutional litigation is not an unconstitutional or otherwise impermissible prior restraint.”

The Council sought rehearing en banc, which was denied by the Ninth Circuit.  Five judges dissented from this denial, and they wrote an opinion explaining why.  The crux of their position is that the “illegal objective” rationale has almost always been limited to injunctions against labor lawsuits.  The dissent is close to being right (which means it is not right).  In any event, it is obviously an interesting clash of first amendment rights, and we wouldn’t be surprised if this case becomes a good candidate for SCOTUS review.  That would make for a fascinating case with an important outcome.  It might end up strengthening or hobbling the invocation of the first amendment in defending against compelled speech when that speech takes the form of scientifically dubious warnings.  

The dissent contains some thunderous language.  It says the panel’s opinion significantly undermines the right to petition, which is implied by the “very idea of a republican government.”  The dissent bemoans “permitting courts to enjoin litigation on pain of contempt because one court forecasts that the litigation will fail against a federal defense.”  This prose is powerful.  But, in the end, we think it is wrong.  Speaking of the end, the language we quoted does come near the very end of the dissent.  But the wrongness of the dissent is evident from the very beginning, where it talks about how “[t]he right to access the courts” is one of the most precious of the liberties safeguarded by the Bill of Rights.”  We’ve heard that sort of thing before.  We’ve heard it when plaintiff lawyers crazily argue that summary judgment is unconstitutional.  Or that exclusion of experts under Rule 702 (we have stopped saying Daubert!) is unconstitutional.  Or that limiting punitive damages is unconstitutional.  It is a principle with no end.  It is utter nonsense.  There might be a right to a jury in some (even most) cases.  But, to hearken to Dickens, the law is not an ass.  There can be reasonable limitations.  Frivolous lawsuits can be terminated.  There is no constitutional right to extortion via litigation.  (Just yesterday a federal court in Seattle held that patent troll lawsuits are not protected speech. Same principle.)

The Ninth Circuit panel got it right.  The dissent got it wrong.  If this case goes up to the Roberts court (or is it now the Thomas court?  Or Gorsuch court?), our bet is that the panel’ s position, not the dissent’s, will prevail.