Beyond the Rhetoric
Beyond the Guillotine: Selective Enforcement as Prior Restraint The guillotine—like the lynching noose—are metaphors that share a fatal flaw: both frame the dispute as existential violence, which triggers defensive reasoning in legal actors who see themselves as procedural, not punitive. A stronger argument for free speech versus rule compliance must operate within the regulatory logic itself while exposing its weaponization—without borrowing trauma. The Better Argument: Procedural Asymmetry as Structural Censorship The core claim is that when a regulator initiates enforcement selectively, prematurely, and in response to protected speech, it converts a neutral compliance framework into a content-based prior restraint—not through what it does, but through how and when it does it. Selective Enforcement As Constitutional Injury Under Harrington v. Purdue Pharma (2024) and earlier selective-prosecution doctrine, differential treatment based on protected expression is actionable even a...