American Civil Liberties Union of Ill. v. Alvarez

The Illinois eavesdropping statute makes it a felony to audio record “all or any part of any conversation” unless all parties to the conversation give their consent. 720 III. Comp. Stat. 5/14 — 2(a)(1). The statute covers any oral communication regardless of whether the communication was intended to be private. Id. 5/14 — 1(d). The offense is normally a class 4 felony but is elevated to a class 1 felony — with a possible prison term of four to fifteen years' — if one of the recorded individuals is performing duties as a law-enforcement officer. Id. 5/14-4(b). Illinois does not prohibit taking silent video of police officers performing their duties in public; turning on a microphone, however, triggers class 1 felony punishment.

The question here is whether the First Amendment prevents Illinois prosecutors from enforcing the eavesdropping statute against people who openly record police officers performing their official duties in public. More specifically, the American Civil Liberties Union of Illinois (“ACLU”) challenges the statute as applied to the organization’s Chicago-area “police accountability program,” which includes a plan to openly make audiovisual recordings of police officers performing their duties in public places and speaking at a volume audible to bystanders. Concerned that its videographers would be prosecuted under the eavesdropping statute, the ACLU has not yet implemented the program. Instead, it filed this preenforcement action against Anita Alvarez, the Cook County State’s Attorney, asking for declaratory and injunctive relief barring her from enforcing the statute on these facts. The ACLU moved for a preliminary injunction.

Faced with so obvious a test case, the district court proceeded with some skepticism. The judge dismissed the complaint for lack of standing, holding that the ACLU had not sufficiently alleged a threat of prosecution. The ACLU tried again, submitting a new complaint addressing the court’s concerns. This time, the judge held that the ACLU had cured the original defect but had “not alleged a cognizable First Amendment injury” because the First Amendment does not protect a “right to audio record.” The judge denied leave to amend. The ACLU appealed.

We reverse and remand with instructions to allow the amended complaint and enter a preliminary injunction blocking enforcement of the eavesdropping statute as applied to audio recording of the kind alleged here. The Illinois eavesdropping statute restricts a medium of expression commonly used for the preservation and communication of information and ideas, thus triggering First Amendment scrutiny. Illinois has criminalized the nonconsensual recording of most any oral communication, including recordings of public officials doing the public’s business in public and regardless of whether the recording is open or surreptitious. Defending the broad sweep of this statute, the State’s Attorney relies on the government’s interest in protecting conversational privacy, but that interest is not implicated when police officers are performing their duties in public places and engaging in public communications audible to persons who witness the events. Even under the more lenient intermediate standard of scrutiny applicable to content-neutral burdens on speech, this application of the statute very likely flunks. The Illinois eavesdropping statute restricts far more speech than necessary to protect legitimate privacy interests; as *587applied to the facts alleged here, it likely violates the First Amendment’s free-speech and free-press guarantees.

I. Background

A. The Illinois Eavesdropping Law

In 1961 the Illinois General Assembly enacted a law making it a crime to use “an eavesdropping device to hear or record all or part of any oral conversation without the consent of any party thereto.” 1961 Ill. Laws 1983. The statute defines “eavesdropping device” as “any device capable of being used to hear or record oral conversation.” Id. (codified at 720 III. Comp. Stat. 5/14 — 1(a)); see also Celia Guzaldo Gamrath, A Lawyer’s Guide to Eavesdropping in Illinois, 87 ILL. B.J. 362, 363 (1999) (discussing the history of the Illinois eavesdropping law). The legislature later amended the law to require the consent of “all of the parties” to the conversation. Ill. Pub. Act 79-1159 (1976) (codified at 720 III. Comp. Stat. 5/14— 2(a)(1)).

In People v. Beardsley, 115 Ill.2d 47, 104 Ill.Dec. 789, 503 N.E.2d 346, 349-50 (1986), the Illinois Supreme Court adopted a narrow interpretation of the eavesdropping statute, declaring that audio recordings were prohibited only if the circumstances “entitle [the conversing parties] to believe that the conversation is private and cannot be heard by others who are acting in a lawful manner.” In other words, recording a conversation was punishable under the eavesdropping statute only if the conversing parties had an “expectation of privacy,” though the court remarked that the expectations of privacy protected under the statute were not necessarily “coextensive with those imposed on governmental action by the fourth amendment.” Id., 104 Ill.Dec. 789, 503 N.E.2d at 351.

Eight years later the state supreme court reaffirmed its Beardsley decision in People v. Herrington, 163 Ill.2d 507, 206 Ill.Dec. 705, 645 N.E.2d 957 (1994). The court held that “there can be no expectation of privacy by the declarant where the individual recording the conversation is a party to that conversation.” Id., 206 Ill. Dec. 705, 645 N.E.2d at 958. Chief Justice Bilandic dissented, arguing that normal privacy expectations include an assumption that most conversations are not being recorded. Id., 206 Ill.Dec. 705, 645 N.E.2d at 959-60 (Bilandic, C.J., dissenting). He also distinguished Beardsley because the parties to the conversation in that case “knew that the defendant had the tape recorder” and therefore “gave their implied consent to the recording of their conversation.” Id., 206 Ill.Dec. 705, 645 N.E.2d at 960. The defendant in Herring-ton, by contrast, recorded a conversation surreptitiously.

In 1994 the Illinois legislature amended the eavesdropping statute so that it applies to “any oral communication between 2 or more persons regardless of whether one or more of the parties intended their communication to be of a private nature under circumstances justifying that expectation.” Ill. Pub. Act 88-677 (1994) (codified at 720 III. Comp. Stat. 5/14 — 1(d)). This amendment effectively overrode the Beardsley and Herrington decisions. As later interpreted by the Illinois Supreme Court, under the amended statute a party’s consent may be “inferred from the surrounding circumstances indicating that the party knowingly agreed to the surveillance.” People v. Ceja, 204 Ill.2d 332, 273 Ill.Dec. 796, 789 N.E.2d 1228, 1241 (2003). However, express disapproval defeats any inference of consent. Plock v. Bd. of Educ. of Freeport Sch. Disk No. 145, 396 Ill.App.3d 960, 336 Ill.Dec. 497, 920 N.E.2d 1087, 1095 (2009).

The eavesdropping statute exempts recordings made by law-enforcement offi*588cers for law-enforcement purposes; officers have substantial discretion to record a wide variety of police-civilian encounters without the subject’s consent. 720 III. Comp. Stat. 5/14 — 3(h). These include any “enforcement stop,” a broadly defined term that includes “traffic stops,” “motorist assists,” “pedestrian stops,” and “requests for identification.” Id. Surreptitious law-enforcement intercepts for investigative purposes are governed by different subsections of the statute. See id. 5/14 — 3(g), (g-5), (g-6). The eavesdropping statute also contains an exemption for the media, at least in some circumstances; it exempts any recording made for “broadcast by radio, television, or otherwise” for live or “later broadcasts of any function where the public is in attendance and the conversations are overheard incidental to the main purpose for which such broadcasts are then being made.” Id. 5/14 — 3(c).

B. The ACLU’s First Amendment Challenge

The ACLU filed this suit against Alvarez in her official capacity seeking declaratory and injunctive relief under 42 U.S.C. § 1983 barring her from enforcing the eavesdropping statute against audio recording that the organization plans to carry out in connection with its “police accountability program.” More specifically, the ACLU intends to implement a “program of promoting police accountability by openly audio recording police officers without their consent when: (1) the officers are performing their public duties; (2) the officers are in public places; (3) the officers are speaking at a volume audible to the unassisted human ear; and (4) the manner of recording is otherwise lawful.” The program will include, among other things, audiovisual recording of policing at “expressive activity” events — protests and demonstrations — in public fora in and around the Chicago area. The organization also plans to make audiovisual recordings of policing at “expressive activities” carried out by its members. The ACLU intends to publish these recordings online and through other forms of electronic media.

The ACLU alleged that its planned audiovisual recording is protected under the First Amendment’s speech, press, and petition clauses, but because of a credible fear of prosecution, it has not followed through on its program. The complaint asked for a declaratory judgment holding the eavesdropping statute unconstitutional as applied to the ACLU’s planned recording and for a corresponding injunction barring the Cook County State’s Attorney from enforcing the statute against the ACLU or its agents who carry out the recording. The ACLU also moved for a preliminary injunction.

The State’s Attorney moved to dismiss under Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure, arguing that the ACLU lacks standing and failed to state a claim of a First Amendment violation. The district court granted the motion on jurisdictional grounds, holding that the complaint did not adequately allege a credible fear of prosecution and that the ACLU therefore lacked standing to sue. The dismissal was without prejudice, however, so the ACLU moved to amend the judgment under Rule 59(e) to allow an amended complaint under Rules 15(a)(2) and 21. The proposed amended complaint addressed the standing defect the court had identified, adding two individual plaintiffs — Colleen Connell, the ACLU’s Executive Director, and Allison Carter, the ACLU’s Senior Field Manager — and more detail about the threat of prosecution. The ACLU renewed its motion for a preliminary injunction.

*589The State’s Attorney opposed this second round of motions, and again the district court agreed. The judge held that although the ACLU had “cured the limited standing deficiencies” and now “sufficiently alleg[ed] a threat of prosecution,” the proposed amended complaint contained a different standing defect. Relying on Potts v. City of Lafayette, 121 F.3d 1106, 1111 (7th Cir.1997), the judge held that “[t]he ACLU has not alleged a cognizable First Amendment injury” because the First Amendment does not protect “a right to audio record.” The judge also held that the ACLU had no First Amendment injury because the police officers and civilians who would be recorded were not “willing speakers.” The judge viewed the ACLU’s claim as “an unprecedented expansion of the First Amendment” and held that granting leave to amend would be futile because “[t]he ACLU has not met its burden of showing standing to assert a First Amendment right or injury.” The judge denied the motion to amend and thus declined to address the request for a preliminary injunction. This appeal followed.

II. Discussion

A. Rule 59(e), Rule 15(a), and Preliminary-Injunction Standards

This case comes to us from an order denying a Rule 59(e) motion to alter or amend a judgment to allow the filing of an amended complaint under Rule 15(a)(2). We review this ruling for an abuse of discretion. Sigsworth v. City of Aurora, Ill., 487 F.3d 506, 511 (7th Cir.2007). But “[i]f the district court reached its conclusion because of its interpretation of relevant law, ... then we review that question of law de novo because a district court’s application of an erroneous view of the law is by definition an abuse of discretion.” Sosebee v. Astrue, 494 F.3d 583, 586 (7th Cir.2007).

The district court’s decision turned on mistaken understandings about the relevant First Amendment doctrine. As we will explain, the ACLU and its employees have standing; they face a credible threat of prosecution under the eavesdropping statute, and their amended complaint plainly alleges a First Amendment injury. Denying leave to amend also had the effect of denying the ACLU’s request for preliminary injunctive relief. The ACLU asks that we address that matter here.

“To win a preliminary injunction, a party must show that it has (1) no adequate remedy at law and will suffer irreparable harm if a preliminary injunction is denied and (2) some likelihood of success on the merits.” Ezell v. City of Chicago, 651 F.3d 684, 694 (7th Cir.2011). If the moving party makes this threshold showing, the court “weighs the factors against one another, assessing whether the balance of harms favors the moving party or whether the harm to the nonmoving party or the public is sufficiently weighty that the injunction should be denied.” Id.

Ordinarily we would remand to allow the district court to weigh the preliminary-injunction factors in the first instance. However, in First Amendment cases, “the likelihood of success on the merits will often be the determinative factor.” Joelner v. Village of Washington Park, Ill., 378 F.3d 613, 620 (7th Cir.2004). This is because the “loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury,” Elrod v. Bums, 427 U.S. 347, 373, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976) (plurality opinion), and the “quantification of injury is difficult and damages are therefore not an adequate remedy,” Flower Cab Co. v. Petitte, 685 F.2d 192, 195 (7th Cir.1982). Moreover, if the moving party establishes a likelihood of success on the merits, the balance of harms *590normally favors granting preliminary injunctive relief because the public interest is not harmed by preliminarily enjoining the enforcement of a statute that is probably unconstitutional. Joelner, 378 F.3d at 620. Stated differently, “injunctions protecting First Amendment freedoms are always in the public interest.”1 Christian Legal Soc’y v. Walker, 453 F.3d 853, 859 (7th Cir.2006).

The parties have fully briefed the likelihood of success on the merits, which raises only a legal question. In this situation, it makes sense for us to address whether preliminary injunctive relief is warranted. See Wis. Right to Life State PAC v. Barland, 664 F.3d 139, 151 (7th Cir.2011) (on appeal from an abstention order, deciding the plaintiffs entitlement to an injunction because it raised a pure legal question under the First Amendment).

We are confronted, then, with a series of legal questions: (1) has the ACLU established standing to sue; (2) does the amended complaint state a claim for a First Amendment violation; and (3) is that claim likely to succeed? The district court stopped after the first inquiry, holding that the ACLU does not have standing to sue because it has no cognizable First Amendment injury. The State’s Attorney urges us to affirm this standing determination, though on a different rationale. In the alternative, she maintains that the proposed amended complaint does not state a claim for an actionable First Amendment violation. Standing comes before the merits, of course, In re Aqua Dots Prods. Liab. Litig., 654 F.3d 748, 750 (7th Cir. 2011), but as we’ll see, in this case there is some overlap, see Bond v. Utreras, 585 F.3d 1061, 1073 (7th Cir.2009).

B. Standing

Standing is “an essential and unchanging part of the case-or-controversy requirement of Article III.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). To establish standing to sue in federal court,

a plaintiff must show that he is under threat of suffering “injury in fact” that is concrete and particularized; the threat must be actual and imminent, not conjectural or hypothetical; it must be fairly traceable to the challenged action of the defendant; and it must be likely that a favorable judicial decision will prevent or redress the injury.

Summers v. Earth Island Inst., 555 U.S. 488, 493, 129 S.Ct. 1142, 173 L.Ed.2d 1 (2009) (citing Friends of Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000)). Our review is de novo. Pollack v. U.S. Dep’t of Justice, 577 F.3d 736, 739 (7th Cir.2009).

It is well established that “preenforcement challenges ... are within Article III.” Brandt v. Village of Winnetka, Ill., 612 F.3d 647, 649 (7th Cir.2010). To satisfy the injury-in-fact requirement in a preenforcement action, the plaintiff must show “an intention to engage in a course of *591conduct arguably affected with a constitutional interest, but proscribed by a statute, and [that] there exists a credible threat of prosecution thereunder.” Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 298, 99 S.Ct. 2301, 60 L.Ed.2d 895 (1979). Stated differently, “[a] person need not risk arrest before bringing a preenforcement challenge under the First Amendment....” Schirmer v. Nagode, 621 F.3d 581, 586 (7th Cir.2010) (citing Holder v. Humanitarian Law Project, — U.S. -, 130 S.Ct. 2705, 2717, 177 L.Ed.2d 355 (2010)); see also Ezell, 651 F.3d at 695. The “existence of a statute implies a threat to prosecute, so pre-enforcement challenges are proper [under Article III], because a probability of future injury counts as ‘injury’ for the purpose of standing.” Bauer v. Shepard, 620 F.3d 704, 708 (7th Cir.2010); see also Majors v. Abell, 317 F.3d 719, 721 (7th Cir.2003) (A preenforcement plaintiff “need not show that the authorities have threatened to prosecute him” because “the threat is latent in the existence of the statute.”).

The district court dismissed the first version of the ACLU’s complaint because it did not sufficiently allege a credible threat of prosecution under the eavesdropping statute. The proposed amended complaint added two individual plaintiffs— ACLU employees Connell and Carter— and more details about the threat of prosecution, including information about recent prosecutions under the eavesdropping statute on like facts. That was enough to satisfy the district court on this point; based on the new allegations, the judge found that “[t]he threat of prosecution is credible and imminent.” At this point, however, the judge perceived a different standing defect — one related to the merits of the claim. Relying on our decision in Potts, the judge held that the First Amendment does not protect a “right to audio record” and therefore the ACLU had not alleged a constitutional injury. This was a misreading of Potts.

The issue in Potts was whether a police officer may refuse entry to an onlooker at a Ku Klux Klan rally because he wanted to bring a video camera onto the site. 121 F.3d at 1109-12. Past Klan rallies had inspired violence, so the police in Lafayette, Indiana, where the rally was to be held, established a rule banning any object that could be used as a weapon or projectile. John Potts arrived with a small video recorder and was denied entry based on the broad “no weapons” rule. He defied a police officer’s order and entered anyway, and was promptly arrested.

Potts then sued the City of Lafayette and two officers alleging First and Fourth Amendment violations. We affirmed the summary judgment in favor of the defendants. Id. at 1114. Addressing the First Amendment claim, we said that “there is nothing in the Constitution which guarantees the right to record a public event.” Id. at 1111 (citing Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 610, 98 S.Ct. 1306, 55 L.Ed.2d 570 (1978) (explaining that the Sixth Amendment does not require broadcasting trials to the public); United States v. Kerley, 753 F.2d 617, 620-22 (7th Cir.1985) (recognizing that the exclusion of cameras from federal courtrooms is constitutional)). The district court seized on this single sentence from Potts and read it for much more than it’s worth.

Immediately after this sentence is the following clarifying explanation: “The right to gather information may be limited under certain circumstances.... The proper constitutional measure of the ... ‘weapons’ ban is whether the restriction constitutes a valid time, place, or manner regulation.” Id. In other words, as applied to Potts, Lafayette’s ban did implicate *592free-speech interests under the First Amendment, but it was subject to review under the “time, place, or manner” standard applicable to content-neutral regulations. Our opinion in Potts continues on for several more pages, carefully applying that standard and upholding the weapons ban. Id. at 1111-12. If Potts stood for a categorical proposition that audiovisual recording is wholly unprotected, as the district court seemed to think, none of this analysis would have been necessary.

The court’s second reason for rejecting the amended complaint was also off the mark. The judge held that without a “willing speaker,” the ACLU had no First Amendment injury. In other words, because the ACLU does not plan to obtain consent from the officers and others whose communications will be recorded, there will be no “willing speakers” and the ACLU has no First Amendment right to receive and record their speech. By conceptualizing the case in this way, the judge seems to have assumed that, at most, only derivative speech rights are at stake.

That’s an incorrect assumption. The district court’s reliance on the “willing speaker” principle gets the doctrine right but its application wrong. It is well established that “[w]hen one person has a right to speak, others hold a ‘reciprocal right to receive’ the speech.” Ind. Right to Life, Inc. v. Shepard, 507 F.3d 545, 549 (7th Cir.2007) (quoting Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 757, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976)). It’s also true that this derivative “right to receive” or “right to listen” principle “presupposes a willing speaker.” Va. State Bd. of Pharmacy, 425 U.S. at 756, 96 S.Ct. 1817; see also Shepard, 507 F.3d at 549 (“a precondition of the right to receive ... is the existence of a willing speaker” (internal quotation marks omitted)); Bond, 585 F.3d at 1077. But this is not a third-party “right to receive” case. The ACLU does not claim to be an intended recipient of police (or police-civilian) communications or to have a reciprocal right to receive the officers’ speech as a corollary of the officers’ right to speak.

Any bystander within earshot can hear what police officers say in public places; “receipt” occurs when the speech is uttered in public and at a volume that others can hear. In other words, the officers’ speech is “received” at the moment it is heard; the eavesdropping statute obviously does not prohibit this. The ACLU’s challenge to the statute implicates a different set of First Amendment principles. The “right to receive” strand of First Amendment doctrine — with its “willing speaker” precondition — has no bearing on the ACLU’s standing.

The State’s Attorney does not argue otherwise. Instead, she returns to the original standing problem that the district court identified. Alvarez maintains, as she did in the district court, that the ACLU has not alleged a credible threat of prosecution. We disagree. The eavesdropping statute plainly prohibits the ACLU’s proposed audio recording; Alvarez acknowledges as much. The recording will be directed at police officers, obviously increasing the likelihood of arrest and prosecution. The statute has not fallen into disuse. To the contrary, the ACLU has identified many recent prosecutions against individuals who recorded encounters with on-duty police officers; three of these were filed by Alvarez’s office.2 Fi*593nally, Alvarez has not foresworn the possibility of prosecuting the ACLU or its employees and agents if they audio record police officers without consent. See Commodity Trend Serv., Inc. v. Commodity Futures Trading Comm’n, 149 F.3d 679, 687 (7th Cir.1998) (“The Supreme Court has instructed us that a threat of prosecution is credible when a plaintiffs intended conduct runs afoul of a criminal statute and the Government fails to indicate affirmatively that it will not enforce the statute.” (citing Virginia v. Am. Booksellers Ass’n, Inc., 484 U.S. 383, 393, 108 S.Ct. 636, 98 L.Ed.2d 782 (1988))). These allegations are easily sufficient to establish a credible threat of prosecution.

Alvarez’s arguments to the contrary are unavailing. She insists that the ACLU’s program is “advocacy under the guise of First Amendment infringement” without any possibility of a “personal and concrete injury.” We confess we do not understand the point. The ACLU’s status as an advocacy organization hardly defeats its standing. The organization intends to use its employees and agents to audio record on-duty police officers in public places. The ACLU claims a First Amendment right to undertake this recording, but the eavesdropping statute prohibits it from doing so. The ACLU itself, and certainly its employees and agents (Connell, Carter, and others), will face prosecution for violating the statute. See 720 III. Comp. Stat. 5/14 — 1(b), (c) (defining “eavesdropper” and the liability of an eavesdropper’s “principal”); see more generally id. 5/5^4(a)(2) (providing for corporate liability if the “offense is authorized, requested, commanded, or performed, by the board of directors or by a high managerial agent who is acting within the scope of his or her employment in behalf of the corporation”). Nothing more is needed for preenforcement standing.

The State’s Attorney maintains that the injury alleged here is “merely conjectural or hypothetical” because the threat of prosecution will only occur “at some indefinite future time” and “the identities of the parties to the conversations that [the] ACLU and its members want to audio record is wholly unknown.” This argument is a nonstarter. It is well established that in preenforcement suits “[i]njury need not be certain.” Brandt, 612 F.3d at 649. This is not a case in which the threat of prosecution hinges on a highly attenuated claim of speculative future events or unknowable details about the manner in which the statutory violation •will be committed or enforced. Cf, e.g., City of Los Angeles v. Lyons, 461 U.S. 95, 105-06, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983) (future injury depended on plaintiff violating an unchallenged law and provoking constitutional violations based on the manner of police enforcement); Schirmer, 621 F.3d at 587 (challenged law could not “fairly be read to prohibit” plaintiffs’ actions).

It’s true that the ACLU does not know precisely when it or its employees would *594face prosecution or which officers would be involved. Preenforcement suits always involve a degree of uncertainty about future events. See Brandt, 612 F.3d at 649 (“Any pre-enforcement suit entails some element of chance.... ”). So long as that uncertainty does not undermine the credible threat of prosecution or the ability of the court to evaluate the merits of the plaintiffs claim in a preenforcement posture, there is no reason to doubt standing. Here, absent officer consent, the eavesdropping statute flatly prohibits the ACLU’s planned recording, exposing the organization and its employees to arrest and criminal punishment. The State’s Attorney has recently prosecuted similar violations and intends to continue doing so. That’s enough to establish a credible threat of prosecution.3

Finally, the State’s Attorney argues that principles of Younger abstention affect the standing inquiry, or alternatively, that Younger abstention applies. See Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). “Younger abstention is appropriate only when there is an action in state court against the federal plaintiff and the state is seeking to enforce the contested law in that proceeding.” Forty One News, Inc. v. County of Lake, 491 F.3d 662, 665 (7th Cir.2007). We have suggested in dicta that if a state prosecution “really were imminent, then a federal court might well abstain on comity grounds.” 520 S. Mich. Ave. Assocs., Ltd. v. Devine, 433 F.3d 961, 963 (7th Cir.2006). The State’s Attorney maintains that because standing requires an imminent injury, Younger abstention must apply. By this logic,