Enjoining State Prosecutions in Federal Court

After the Texas Attorney General gave Yelp, Inc. notice of intent to file a quasi-criminal enforcement suit against it, Yelp went yelping to the federal district court in San Francisco for an injunction against the enforcement.

Can they do that? No, said the district judge, and today a three-judge panel of the Ninth Circuit affirmed. This isn’t a new rule. It’s an old case called Younger.

Over 55 years ago, a federal district court enjoined a prosecution in California state court. The Los Angeles District Attorney (and future California Attorney General) Evelle Younger, took it all the way to the Supreme Court. In Younger v. Harris , 401 U.S. 37 (1971), the high court established a general rule that federal courts should abstain from using their injunctive powers against prosecutions in state courts. Federal-law defenses must generally be asserted in the state court. There is an exception for bad faith prosecutions.

First Amendment defenses generally are not an exception. Younger itself was such a case. Yelp did not succeed in showing bad faith here.

In reaction to the Supreme Court’s Dobbs decision on abortion, Yelp branded the pages for all crisis pregnancy centers with this notice: “This is a Crisis Pregnancy Center. Crisis Pregnancy Centers typically provide limited medical services and may not have licensed medical professionals onsite.” A CPC in Texas asked that the label be removed from its page because it did have medical professionals on site and substantiated that fact. Yelp refused, saying, ““[t]he consumer notice is applicable to all [CPCs] and cannot be removed at this time.”

Nonsense. Of course the notice could be removed. Yelp just chose not to. Later, Yelp modified its notice on CPC’s pages in response to complaints from several state attorneys general.

Is Texas’s enforcement action against Yelp for the first notice, which it refused to remove or modify after being presented with evidence it was false in a particular case, bad faith? All four federal judges to look at the case said no.

CJLF takes no position on abortion controversies. But pasting a bald-faced lie on someone’s page and refusing to correct it after notice it is false is actionable. An enforcement action for such conduct is not bad faith.

The Ninth Circuit correctly applied Younger here. The case is Yelp, Inc. v. Paxton, No. 24-581.