Texas Abortion and Social Media Laws Are a 'Contradictory Mess'
Plus: More bad news for free speech online, Fauci on booster shots, and more...
Bad Texas regulations could be at odds with each other. The new Texas abortion ban may contradict the mandates of social media regulation passed by the Texas Legislature. Under the mandates of the two statutes, social media platforms could be required to both take down and leave up information about abortion, Techdirt's Mike Masnick points out.
The social media law—House Bill 20—was passed by the Texas Senate on Wednesday (the same day Texas' new abortion law took effect).
Similar to a law that was passed—and blocked—in Florida, H.B. 20 is designed to treat social media platforms like common carriers (such as phone and cable companies).
A "blatantly unconstitutional bill," H.B. 20 "tries to prevent social media websites from moderating content," writes Masnick. "While the bill does include some language to suggest that some content can be moderated, it puts a ton of hurdles up to block that process."
Meanwhile, the new Texas abortion law (Senate Bill 8) prohibits "knowingly engag[ing] in conduct that aids or abets the performance or inducement of an abortion, including paying for or reimbursing the costs of an abortion through insurance or otherwise."And it allows civil lawsuits against those suspected of helping someone get an abortion after six weeks of pregnancy.
The aiding and abetting provision could be construed to prohibit providing information about where to get an abortion, abortion pills, how to get funding to travel out of state for an abortion, etc.
While S.B. 8 does say "that the aiding and abetting rule should not apply to 1st Amendment protected speech," Masnick doesn't see that "making much of a difference in the long run because (1) the 1st Amendment already protects such speech so you don't need a law to say that and (2) it's unlikely to stop people from suing over speech that they claim is aiding and abetting…"
The digital rights group Electronic Frontier Foundation (EFF) also has concerns that the Texas abortion law could target speech about abortion. "In addition to the drastic restrictions it places on a woman's reproductive and medical care rights, the new Texas abortion law, SB8, will have devastating effects on online speech," warns EFF:
The law creates a cadre of bounty hunters who can use the courts to punish and silence anyone whose online advocacy, education, and other speech about abortion draws their ire. It will undoubtedly lead to a torrent of private lawsuits against online speakers who publish information about abortion rights and access in Texas, with little regard for the merits of those lawsuits or the First Amendment protections accorded to the speech. Individuals and organizations providing basic educational resources, sharing information, identifying locations of clinics, arranging rides and escorts, fundraising to support reproductive rights, or simply encouraging women to consider all their options—now have to consider the risk that they might be sued for merely speaking. The result will be a chilling effect on speech and a litigation cudgel that will be used to silence those who seek to give women truthful information about their reproductive options.
So what happens if someone posts to a Texas Facebook group about how or where to get an abortion after six weeks?
"Until the courts actually rule on this, we don't just have a mess, we have a contradictory mess thanks to a Texas legislature (and governor) that is so focused on waging a pointless culture war against 'the libs' that they don't even realize how their own bills conflict with one another," Masnick writes. As it stands,
Under Texas's social media law—remember "each person in this state has a fundamental interest in the free exchange of ideas and information"—Facebook is expected to keep that information up. However, under Texas' anti-choice law—remember, anyone can sue anyone for "inducing" an abortion—Facebook theoretically faces liability for leaving that information up.
So who wins out? Well, it should be that both bills are found to be unconstitutional, so it doesn't matter. But we'll see whether or not the courts recognize that. Section 230 should also protect Facebook here, since it pre-empts any state law that tries to make the company liable for user posts, which in theory the abortion law does. The 1st Amendment should also backstop both of these, noting that (1) Texas' social media law clearly violates Facebook's 1st Amendment rights, and (2) the broad language saying anyone can file civil suit against anyone for somehow convincing someone to get an abortion also pretty clearly violates the 1st Amendment.
In other news related to the Texas abortion ban…
• "An activist has made a script to flood a Texas website used to solicit information on people seeking abortions with fabricated data, according to a TikTok video from the developer and Motherboard's test of the tool," Vice reports.
• The Cato Institute's Walter Olson riffs on some of the elements of the Texas abortion ban and how few of "these ways of turbocharging litigation…are new techniques." Twitter thread starts here:
A lot of people today learning about the fundamental unfairness of "one-way" fee shifting (losing defendant must pay, losing plaintiff skates away) in private litigation. #SB8
— Walter Olson (@walterolson) September 1, 2021
• Dating apps Bumble and Match "are creating relief funds for people affected by a Texas law that bans abortion from as early as six weeks into pregnancy," reports The Texas Tribune.
• "The Texas abortion ban could force tech to snitch on users," warns Protocol.
https://twitter.com/jkosseff/status/1433764251479519237
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Sixth Circuit rejects Cleveland official's claim that immunity protects him from First Amendment retaliation suit, in case brought by fire battalion chief who says he was punished for voicing concern over his chief's qualifications. https://t.co/7v8NWc1F2m pic.twitter.com/wrH9tpA63l
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FREE MARKETS
Amazon's web hosting wing may start cracking down on the kinds of content it hosts. The company "plans to take a more proactive approach to determine what types of content violate its cloud service policies, such as rules against promoting violence, and enforce its removal," Reuters reports.
Over the coming months, Amazon will hire a small group of people in its Amazon Web Services (AWS) division to develop expertise and work with outside researchers to monitor for future threats, one of the sources familiar with the matter said.
It could turn Amazon, the leading cloud service provider worldwide with 40% market share according to research firm Gartner, into one of the world's most powerful arbiters of content allowed on the internet, experts say.
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