Mayday Health v. Jackley

Issue: Whether the First Amendment bars a state attorney general from sending a cease-and-desist letter and initiating retaliatory state enforcement proceedings against a nonprofit organization that publishes truthful information about abortion pill procurement, and whether a federal court may enjoin such proceedings notwithstanding *Younger v. Harris* abstention doctrine.

Mayday Health, a New York-based nonprofit that publishes information about reproductive healthcare including abortion pill providers' prices, locations, and delivery times, filed suit against the South Dakota Attorney General alleging First Amendment retaliation. The defendant opposed Mayday's preliminary injunction motion on grounds that Mayday's speech is commercial or encourages illegal activity, that the court lacks personal jurisdiction, and that *Younger v. Harris* requires abstention in deference to pending South Dakota state enforcement proceedings under SDCL § 37-24-23. In this reply brief, Mayday argues its speech is noncommercial and constitutionally protected under *NIFLA v. James* and *Bigelow v. Virginia*, that personal jurisdiction is proper under CPLR § 302(a)(3) because the first effects of the defendant's tortious conduct were felt in New York, and that *Younger* abstention is unavailable under the Second Circuit's *Cullen v. Fliegner* exception when state proceedings are initiated to retaliate for or deter protected First Amendment activity.

The case advances the "jawboning" doctrine by testing the limits of state attorney general authority to use cease-and-desist letters and retaliatory enforcement actions to suppress politically disfavored but constitutionally protected online speech, and it raises a significant question about whether *Younger* abstention can shield such proceedings from federal judicial review when the proceedings are allegedly pretextual.

Issue: Whether the South Dakota Attorney General's threatened enforcement of the state Deceptive Trade Practices and Consumer Protection Act (SDCL § 37-24) against a nonprofit that publishes truthful, noncommercial reproductive health information and hyperlinks to third-party websites constitutes unconstitutional viewpoint-based retaliation and prior restraint in violation of the First Amendment.

Mayday Health, a New York-based nonprofit that operates a reproductive health information website and placed gas station placards in South Dakota directing viewers to that site, filed a complaint in the S.D.N.Y. on January 6, 2026, seeking declaratory and injunctive relief under 42 U.S.C. § 1983. The South Dakota Attorney General, at the Governor's direction, sent Mayday a cease-and-desist letter threatening felony criminal consequences or civil penalties up to $5,000 per violation under SDCL § 37-24-6, and subsequently filed an unserved injunction motion in South Dakota state court targeting both Mayday's website content and its physical signs. Mayday alleges that the investigation was a pretextual "sham," that the Attorney General's claims are objectively frivolous because the targeted statements are literally true, that Mayday's publications are noncommercial speech outside the statute's scope, and that any liability premised on linked third-party content would additionally be barred by § 230(c)(1); Mayday further alleges it has already self-censored by halting additional signage and withholding social media content, satisfying the chilling-effect injury requirement. No court has yet ruled on the merits.

The case tests whether a state attorney general may use a consumer-protection enforcement threat as a mechanism to suppress a noncommercial publisher's truthful speech about out-of-state legal services — squarely implicating *Bigelow v. Virginia*'s protection for cross-border reproductive-health information — while also presenting a notable pleading-stage invocation of § 230(c)(1) as a shield against liability predicated on a website's hyperlinks to third-party content, potentially advancing the question of how § 230 interacts with state regulatory (rather than private civil) actions targeting a platform's linking choices.