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As I noted in my e-mail, I may be wrong, but I thought the First Amendment was an affirmative defense. Therefore, the defendants would have to raise it at trial.
If there is enough to the plaintiffs' claims to survive the defendants' motion to dismiss, and they have to wait for a public trial to make the First Amendment defense, they may seek to settle instead, in order to avoid bad publicity.
I really don't know this area of law very well, so I could be completely ate up on this.
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