Joshua Windham
Joshua Windham  ·  July 23, 2021

When you sue the government for violating your rights, one of its favorite moves is to argue that the court has no power to decide your case. These arguments can take many forms, but one that shows up in many IJ cases is the argument that our client is not really injured, so there is nothing the court can do to help.

That’s what happened in a case IJ has been litigating for a few years now in South Carolina. In 2016, we partnered with tech startup Opternative (now called Visibly) to challenge a protectionist law that banned eye doctors from using its online vision-testing software to prescribe glasses. Two years into the case, the state argued that Visibly was not really injured because the law banned only its “particular business model,” and Visibly could offer a different product—one that did not operate purely online—to get around the law.

The trial court agreed and dismissed the case. The implications of the court’s decision were shocking. By its logic, nobody could sue the government for restricting their right to earn a living. The government could ban any economic activity (no matter how benign) or pass any regulation (no matter how irrational) and defeat all legal challenges by arguing, “Well, you’re free to go do something else.”

So we appealed. And in May, the South Carolina Court of Appeals reversed the trial court decision. The appellate court flatly rebuked the lower court’s logic, holding that when a plaintiff “is prohibited from engaging in business under the business model it desires,” that is a constitutional injury that courts can remedy. The decision sends a strong message to lower courts that, in South Carolina, the government cannot restrict people’s economic liberty with impunity. 

Now Visibly’s case heads back down to the trial court, which will have to decide—at long last—whether South Carolina’s ban is constitutional.

Joshua Windham is an IJ attorney.

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