Discussion of the Subtext of the 6th Circuit's Ruling

Nov 28 18:53 UTC 2000

Here's the text:  http://www.cyberspace.org/lawsuit/ruling.txt

Diving right in, I read the following paragraph as the most telling:

"Since final conclusions on the ultimate issues involved in the lawsuit 
are premature and inappropriate at this stage of the district court 
proceedings, we must assume that the district court was speaking 
tentatively only, in the context of viewing the likelihood of plaintiffs' 
ultimate success on the merits of their claims. Indeed, the final 
paragraphs of the opinion speak in those terms."

I interpret this statement as a commentary on and rebuke of Judge 
Tarnow's effusive condemnation of Mich. Pub. Act 33, to wit: "...the Act 
offends the guarantee of free speech in the First Amendment and is, 
therefore, unconstitutional."

The appeals court finds Judge Tarnow's ruling to be within the limits of 
the law, but only by what appears to be the slimmest of margins.  In 
fact, the ruling's wording seems to suggest that the court would rather 
have ruled in favor of the State of Michigan, but was unable to 
contravene established precedent which dictated otherwise.  

The wording to which I refer is, "Because the district court cited and 
relied upon opinions of the United States Supreme Court that arguably 
support its conclusion that plaintiffs would likely succeed on the merits 
of their claim, we are unable to say that the district court abused its 
discretion when it granted the preliminary injunction."  Specifically, I 
refer to the word "arguably" near the beginning of the statement.  It 
looks as though, by that reference, the court is offering the appellants 
a potential route to pursue in Judge Tarnow's court in the trial on the 
merits of our suit.

The upshot is, as I see it, that the Appeals court feels that our suit is 
founded on legal precedent which might conceivably be overturned if the 
State of Michigan wished to adapt its tactics and pursue the case to the 
extreme end.  I'm no legal scholar, but that's what I read between the 
lines.

----
[I would love for this to be a serious and substantive discussion of the 
meaning and implications of this ruling.  Accordingly, please read the 
ruling in full before commenting (preferably twice -- it's short), and 
also please link any outside sources and references so that we can all 
follow along.  Thanks!]

response 2 of 9:

Nov 29 07:19 UTC 2000

The article on Slashdot seems to imply this is a posative ruling for free
speech as well, see: http://slashdot.org/yro/00/11/28/1438210.shtml

IANAL so dodn't ask me. :-)

response 4 of 9:

Nov 29 11:51 UTC 2000

The way they read it, the quibble they were picking was that something
stated as "fact" in the injunction was actually a fact to be settled in
the trial itself, which as it hadn't happened was still only a
probability rather than a certainty.  It seemed rather more nit-picking
than anything else, at least to me.

response 6 of 9:

Dec 4 19:18 UTC 2000

The web page http://www.cyberspace.org/lawsuit/ruling.txt is a horrible
mess.  Long lines, and missing text.  Is there a legiable copy of this
somewhere?

response 8 of 9:

Dec 4 19:31 UTC 2000

Oh, I see.  The text is all there.  I was confused by the footnote being in
the middle of the text.  I'd personally recommend to whomever HTML'ized this
that the page break be elminated and the footnote be moved to the bottom of
the page.  Legiability is more important that strict reproduction of the
faults of paper documents.