[EL] Motion for preliminary injunction and likelihood of success

[Benjamin Barr]

One of the neat, oft unnoticed things about First Amendment litigation is
that likelihood of success is the most important factor in assessing
whether relief should be granted.  *See, e.g., Hobby Lobby Stores, Inc.
v. Sibelius, *733 F.3d 1114 (10th Cir. 2013); *Elrod v. Burns*, 427 U.S.
347, 373 (1976).  And when seminal, First Amendment political free speech
rights are at stake, they are presumptively favored over censorship and
heavy-handed regulation.  I think that formula often causes confusion for
this listserv.

If free speech holds a greater static value than government censorship at
the start of the equation (call the government interest "protecting
morality" or call it "preventing against corruption"--whatever silliness
you'd like), likelihood of success must be less than fifty percent since it
is presumably favored.  Then again, we're lawyers, not mathematicians.

Happy Election Day tomorrow!

Forward,

B

On Mon, Nov 7, 2016 at 8:18 PM, Greenberg, Kevin <
Kevin.Greenberg at flastergreenberg.com> wrote:

> It's one of four factors for preliminary relief.
>
> Now that he's been dead for 18 years I can say that the judge I clerked
> for said that sometimes in these situations he would think there was 130%
> chance of success on the merits since he was guessing what eventually he
> would decide to be the facts.
>
> For that reason he frequently had his opinions on the other prongs don
> most of the heavy lifting.
>
> Kevin Greenberg
> 215-279-9912
> kevin.greenberg at flastergreenberg.com<mailto:kevin.greenberg@
> flastergreenberg.com>
>
> On Nov 7, 2016, at 7:28 PM, Mark Scarberry <mark.scarberry at pepperdine.edu
> <mailto:mark.scarberry at pepperdine.edu>> wrote:
>
> I am not completely sure that "likelihood of success" (as used by this
> Massachusetts court and as used by the US S. Ct.) actually means greater
> than a 50% chance of success.
>
> If I put a bullet in one chamber of a revolver, give it spin, and prepare
> to pull the trigger, you may well say, "Don't do that! You are likely to
> die!" I doubt you would say, "Don't do that! You aren't likely to die but
> you do have a 16.7% chance of dying!"
>
> I have looked for clear confirmation of the meaning of "likelihood of
> success" in this context and have not found it.
>
> So it may be possible that both parties did, in a sense, have a
> substantial likelihood of success.
>
> This would soften the Supreme Court's stated requirements for preliminary
> relief.
>
> I suppose another way to put it is that if a party has a 40% chance of
> succeeding, then its likelihood of success is substantial.
>
> Thoughts?
>
> Mark
>
> Prof. Mark S. Scarberry
> Pepperdine Univ. School of Law
>
> On Mon, Nov 7, 2016 at 4:08 PM, Rick Hasen <rhasen at law.uci.edu<mailto:rha
> sen at law.uci.edu>> wrote:
> MA Court, Relying on State Constitution, Allows Three Voters to Vote Who
> Missed Registration Deadline<http://electionlawblog.org/?p=88951>
> Posted on November 7, 2016 3:55 pm<http://electionlawblog.org/?p=88951>
> by Rick Hasen<http://electionlawblog.org/?author=3>
> The opinion is here<http://electionlawblog.org/wp-content/uploads/ma-reg.
> pdf>. (Case brought by ACLU.)
> Doesn’t really seem to decide anything of significance except for these
> three voters. And the opinion contains this non-sequitur: “Both sides have
> a substantial likelihood of success on the merits.” That’s not how it
> works. If both sides have equally strong arguments, then the party bearing
> the burden of proof loses.
> <image001.png><https://www.addtoany.com/share#url=http%
> 3A%2F%2Felectionlawblog.org%2F%3Fp%3D88951&title=MA%
> 20Court%2C%20Relying%20on%20State%20Constitution%2C%
> 20Allows%20Three%20Voters%20to%20Vote%20Who%20Missed%
> 20Registration%20Deadline>
> Posted in Uncategorized<http://electionlawblog.org/?cat=1>
>
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