Co-Sponsor Of Unconstitutional AADC Law Completely Misrepresents Court’s Ruling, Showing His Lack Of Attention To Detail
from the running-your-mouth dept
Last week, we wrote about a federal district judge in California, Beth Labson Freeman, tossing out California’s Age Appropriate Design Code (AB 2273) as unconstitutional under the 1st Amendment. The ruling was careful and thorough, which did not surprise me, having sat through the oral arguments on the matter, where it seemed that the judge was asking all the right questions.
I fully expect California Attorney General Rob Bonta to appeal this ruling, but the state and legislators who supported the bill have been mostly quiet on the matter. However, late in the week, the Republican co-sponsor of the bill, Jordan Cunningham (who has since left the California Assembly), who introduced the bill with Democrat Buffy Wicks, gave some quotes to a newspaper that show he didn’t even read the decision, while insisting that he thinks it’ll win on appeal. He believes the appeal is strong mainly because he says the Court applied the strictest level of scrutiny (the highest bar):
When asked about the injunction, Cunningham told the Washington Examiner that he felt “profound disappointment” but believes the decision to be “quite vulnerable to appeal.” He said that the decision “overreached and applied the strictest level of scrutiny possible.
“We spent hundreds of hours of work on this bill shaping it, getting it through the legislature,” he said. “I mean, it passed the state assembly for 74 to zero.”
Cunningham said that the injunction blocks the AADC under the legal standard of First Amendment-related “strict scrutiny.” The standard requires the government to prove that the law is the “least restrictive means” to advance a “compelling” government interest related to speech. But the AADC doesn’t affect speech, Cunningham argued.
This is interesting for many reasons, not least of which is that the District Court did not apply strict scrutiny. Which anyone who read the case would know, because the judge literally said:
the Court will assume for the purposes of the present motion that only the lesser standard of intermediate scrutiny for commercial speech applies because, as shown below, the outcome of the analysis here is not affected by the Act’s evaluation under the lower standard of commercial speech scrutiny.
Literally, the key part of the ruling was that the court chose not to even figure out if intermediate or strict scrutiny should apply, because if the law couldn’t even pass intermediate scrutiny (and it could not!) it didn’t even matter whether or not strict scrutiny applied.
I don’t know about you, but I think if you’re the guy who co-sponsored the unconstitutional bill that just got thrown out as unconstitutional, and a reporter asks you about it, it would sorta make sense to (1) read the ruling, and (2) not make stuff about it. But, I guess that’s why I’m not in the California Assembly. I prefer to actually read the homework.
Either way, it’s bizarre and blatantly obviously wrong, but honestly par for the course for Cunningham to say that the bill was only found unconstitutional because the court used “the strictest level of scrutiny possible.”
Of course, it’s this level of attention to detail that got us into this mess in the first place. Even though plenty of people explained the constitutional infirmities in the law to many legislators, including directly to Cunningham himself, they all brushed it off and ignored the concerns, sure of their own correctness.
Cunningham is no longer in the Assembly, and this sort of mistake really doesn’t matter, but it really does show the extreme arrogance, combined with ignorance, that has the California legislature constantly doing this sort of thing. They just put their fingers in their ears and pretend that reality is whatever they want it to be.