As I read the opinion, though, I couldn't help wondering if the opinion would have been different if an alternative hot-button topic was at issue.
Here, it's Texas Attorney General Ken Paxton filing a civil enforcement action against Yelp for putting disclaimers on various "Crisis Pregnancy Centers" on its site that (arguably) pretend to be abortion providers but are actually anti-abortion advocates. I have no doubt that Paxton filed this action in order to demonstrate his anti-abortion credentials, and arguably in retaliation for Yelp's (arguably) pro-abortion stand. That's basically Yelp's "bad faith" argument against Younger abstention.
Judge Bress holds that this exception doesn't apply, and narrows it almost out of existence. (I thought as I read the opinion that everything looks easier in hindsight. For example, Judge Bress distinguishes a prior exception -- an Eighth Circuit case in which the exception applied when a Black criminal defense attorney was charged with bribing a witness in Arkansas, arguably in retaliation for his advocacy on behalf of his client -- due to the "pervasive racism and discriminatory treatment of blacks" in the area. True enough, I suspect. But the guy did pay $500 to the victim's family to get the charges dropped. And I'll bet dollars to donuts that the prosecutor there made virtually the identical arguments that Paxton's making here -- that he was neutral, that state resources were limited, that he charged anyone under identical facts, etc. Yet the bad faith exception applied there, but not here.)
Would the panel have written the opinion the same way if, say, Hawaii's Attorney General had filed a high-profile civil enforcement action against the National Rifle Association, or against the National Right to Life Committee? Maybe. Maybe not.
Regardless, under today's opinion, it's hard to think of a real-world example of where the bad faith exception would actually apply.
