New Texas Abortion Law Likely To Unleash A Torrent Of Lawsuits Against Online Education, Advocacy And Other Speech

from the though-230-will-help dept

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. 

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. 

SB8, also known as the Texas Heartbeat Act, encourages private persons to file lawsuits against anyone who “knowingly engages in conduct that aids or abets the performance or inducement of an abortion.” It doesn’t matter whether that person “knew or should have known that the abortion would be performed or induced in violation of the law,” that is, the law’s new and broadly expansive definition of illegal abortion. And you can be liable even if you simply intend to help, regardless, apparently, of whether an illegal abortion actually resulted from your assistance.

And although you may defend a lawsuit if you believed the doctor performing the abortion complied with the law, it is really hard to do so. You must prove that you conducted a “reasonable investigation,” and as a result “reasonably believed” that the doctor was following the law. That’s a lot to do before you simply post something to the internet, and of course you will probably have to hire a lawyer to help you do it.

SB8 is a “bounty law”: it doesn’t just allow these lawsuits, it provides a significant financial incentive to file them. It guarantees that a person who files and wins such a lawsuit will receive at least $10,000 for each abortion that the speech “aided or abetted,” plus their costs and attorney’s fees. At the same time, SB8 may often shield these bounty hunters from having to pay the defendant’s legal costs should they lose. This removes a key financial disincentive they might have had against bringing meritless lawsuits. 

Moreover, lawsuits may be filed up to six years after the purported “aiding and abetting” occurred. And the law allows for retroactive liability: you can be liable even if your “aiding and abetting” conduct was legal when you did it, if a later court decision changes the rules. Together this creates a ticking time bomb for anyone who dares to say anything that educates the public about, or even discusses, abortion online.

Given this legal structure, and the law’s vast application, there is no doubt that we will quickly see the emergence of anti-choice trolls: lawyers and plaintiffs dedicated to using the courts to extort money from a wide variety of speakers supporting reproductive rights.

And unfortunately, it’s not clear when speech encouraging someone to or instructing them how to commit a crime rises to the level of “aiding and abetting” unprotected by the First Amendment. Under the leading case on the issue, it is a fact-intensive analysis, which means that defending the case on First amendment grounds may be arduous and expensive. 

The result of all of this is the classic chilling effect: many would-be speakers will choose not to speak at all for fear of having to defend even the meritless lawsuits that SB8 encourages. And many speakers will choose to take down their speech if merely threatened with a lawsuit, rather than risk the law’s penalties if they lose or take on the burdens of a fact-intensive case even if they were likely to win it. 

The law does include an empty clause providing that it may not be “construed to impose liability on any speech or conduct protected by the First Amendment of the United States Constitution, as made applicable to the states through the United States Supreme Court’s interpretation of the Fourteenth Amendment of the United States Constitution.” While that sounds nice, it offers no real protection—you can already raise the First Amendment in any case, and you don’t need the Texas legislature to give you permission. Rather, that clause is included to try to insulate the law from a facial First Amendment challenge—a challenge to the mere existence of the law rather than its use against a specific person. In other words, the drafters are hoping to ensure that, even if the law is unconstitutional—which it is—each individual plaintiff will have to raise the First Amendment issues on their own, and bear the exorbitant costs—both financial and otherwise—of having to defend the lawsuit in the first place.

One existing free speech bulwark—47 U.S.C. § 230 (“Section 230”)—will provide some protection here, at least for the online intermediaries upon which many speakers depend. Section 230 immunizes online intermediaries from state law liability arising from the speech of their users, so it provides a way for online platforms and other services to get early dismissals of lawsuits against them based on their hosting of user speech. So although a user will still have to fully defend a lawsuit arising, for example, from posting clinic hours online, the platform they used to share that information will not. That is important, because without that protection, many platforms would preemptively take down abortion-related speech for fear of having to defend these lawsuits themselves. As a result, even a strong-willed abortion advocate willing to risk the burdens of litigation in order to defend their right to speak will find their speech limited if weak-kneed platforms refuse to publish it. This is exactly the way Section 230 is designed to work: to reduce the likelihood that platforms will censor in order to protect themselves from legal liability, and to enable speakers to make their own decisions about what to say and what risks to bear with their speech. 

But a powerful and dangerous chilling effect remains for users. Texas’s anti-abortion law is an attack on many fundamental rights, including the First Amendment rights to advocate for abortion rights, to provide basic educational information, and to counsel those considering reproductive decisions. We will keep a close eye on the lawsuits the law spurs and the chilling effects that accompany them. If you experience such censorship, please contact info@eff.org.

Originally published to the EFF Deeplinks blog.

Filed Under: abortion, advocacy, aiding and abetting, free speech, sb8, snitch, texas

Thanks To Section 230, I Can Correct Wired's Portrayal Of My Section 230 Advocacy

from the speaking-about-speaking-about-speech dept

I always thought it would be a great honor to be referenced in the hallowed pages of WIRED magazine. Like Mike, I've been reading it since its beginning, as a then student studying information technology and watching the Internet take hold in the world.

This week it finally happened, and ugh... My work was referenced in support of a terrible take on Section 230, which not only argued that Section 230 should be repealed (something that I spend a great deal of personal and professional energy trying to push back against) but masqueraded as a factual explanation of how there was no possible reasonable defense of the law and that therefore all its defenders (including me) are, essentially, pulling a fast one on the public by insisting it is important to hold onto. After all, as the title says, "Everything you've heard about Section 230 is wrong," including, it would seem, everything we've been saying about it all along.

Such an assertion is, of course, ridiculous. But this isn't the first bad Section 230 take and unfortunately is unlikely to be the last, so if that were all it was it might be much easier to simply let it fade into history. But that wasn't all it was, because the piece didn't just make that general statement; it used my own work to do it, and in the most disingenuous way.

Ordinarily, of course, my work can speak for itself. The problem was, the author of this piece didn't let it speak for itself. Instead he stripped it of its context, plucking out only bits of the overall argument, citing ideas so incompletely, so orphaned from the overall message in which they were delivered, as to effectively mischaracterize my position. And then he used that mischaracterization of what I had argued as ammunition to underpin his anti-230 argument.

Nor did the author let me speak for my work either, which could have corrected his apparent misapprehensions, if not about Section 230's merit at large, then at least the bigger picture I was getting at in the particular brief he had honed in on. But despite speaking with several of the law's detractors, he spoke to only one of its defenders, even though he obviously considered several of us expert enough to misleadingly reference our work in support of his dubious argument.

It reads as a hit piece, not just against the law itself but its supporters, and one that he was apparently so determined to make that speaking with us, and affording us the chance to explain our views and what informs them, was not something he could chance. After all, we might have convinced him of the statute's merit, or at least given him some actual factual fodder to include in his supposedly factual accounting of the law, and that was obviously not the piece he wanted to write.

And so it turns out that my first mention in WIRED is a misrepresentation of my advocacy. Which is rather depressing, personally, but it raises another issue, and one that ties back into the advocacy I do defending the statute and why I do it so fervently.

It's because the only way to make sure that my actual views can get widely expressed is to express them directly myself, and for that I need to use outlets that are protected by Section 230, like Twitter. Or maybe sometimes Facebook. Or even (as we always point out in our briefs) a site like Techdirt. If I have things to say, I obviously cannot depend on traditional media gatekeepers like Conde Nast magazines to help me say them. And while I am obviously eager to set the record straight on my free speech advocacy, I don't just speak for myself in expressing this concern. Without this law, we would all be without these outlets and without these opportunities to express ourselves publicly, even when we need to. Which would ultimately foreclose a lot of expression, including plenty of even more necessary expression.

This stark calculus is also why it is so odd to see some of the law's opponents (including those who were actually quoted in the article) praise the article for having included lots of voices in it. Sure, it shared some voices. But only some. And the absence of other voices shows why Section 230 is so needed: because often Section 230-enabled outlets are the only way many voices – including the most marginalized and vulnerable many of these advocates profess to be championing – can be heard.

Of course, to this point the anti-230 people unhappy about being de-platformed may say, "See? We told you it's bad to lose access to an online outlet for expression. So get rid of 230 so we can come back!" But this call to change Section 230 is silly, for a number of reasons. One is that Section 230 is not at the root of their de-platforming; the First Amendment is. Secondly, while I'm unhappy about WIRED's editorial decision to publish this piece of questionable journalism, I remain perfectly happy and committed to defending its right to publish its questionable journalism. Nobody's expression is vindicated by using law to limit anyone else's expressive rights, even if they have used them questionably; if anything, the situation calls for doubling down on speech protection, including with a law like Section 230 that makes First Amendment rights less illusory and more substantively meaningful for everyone.

Furthermore, as the Copia Institute has talked about many times in our Section 230 advocacy, there is an internal balance to Section 230 that allows it to work effectively. In order to get the most beneficial and least deleterious content online that we can overall, platforms need to be legally safe to leave as much as they want up and take as much as they want down. When either protection, currently guaranteed by Section 230, starts to disappear, it starts tying platforms' hands such that they are no longer able to do the best they can on either front. In other words, making it legally impossible for platforms to remove users is not going to lead to more valuable and less problematic content online. It will just put platforms under strain and make it hard for them to be available for anyone to use.

So repealing Section 230 is not going to help anyone speak online. And that includes both the people who have been de-platformed and also the vulnerable who always need to have a platform available to be able to speak out against those who would seek to hurt them. Which often, ironically, is the very same people complaining of being de-platformed. It is very strange to see the law's opponents quoted in the article, who often claim to oppose the law as a means of protecting the vulnerable, push for a policy change that will only make the vulnerable even more so. Especially when it's the exact same policy change that people who would want to hurt the vulnerable keep calling for themselves. They can't both be right, and the fact that these two fundamentally opposed groups would seem to want the same thing itself suggests that neither of them are.

What this episode shows is that people cannot be dependent on the traditional media gatekeepers to enable their public expression, no matter how much they need to be able to express it. In fact, the less powerful the voice, the more important it is that these voices not be dependent on gatekeepers to speak so that they can always be able to speak against those who might hurt them. And so they need Section 230 to exist to enable other outlets they can use instead (including, potentially, their own, which Section 230 makes it much more practically possible to make). Without that law, and without these outlets, we will be without that expression, and that will be no good for anyone.

Filed Under: advocacy, gatekeepers, section 230

Dear Lawmakers: Five Years Ago The Internet Rose Up In Protest & We're Still Watching

from the we're-still-here dept

Filed Under: advocacy, congress, copyright, encryption, internet freedom, net neutrality, open internet, pipa, politics, protests, sopa

Utilities In Florida Are Using A Fake Consumer Group To Hamstring Solar Competition

from the solar-sockpuppetry dept

"Consumers for Smart Solar is a diverse, bipartisan coalition of business, civic, and faith-based organizations working to promote solar energy without sacrificing commonsense consumer protections. We believe Florida needs more solar and that we have to do it the right way. That means protecting consumers from scam artists, rip-offs and long-term contract traps while ensuring that those who do not choose solar electricity are treated fairly, too."

"(James Madison Institute in Tallahassee's Sal) Nuzzo called the amendment, which has received more than $21 million in utility industry financing, “an incredibly savvy maneuver” that “would completely negate anything they (pro-solar interests) would try to do either legislatively or constitutionally down the road,” according to an audio recording of the event supplied to the Herald/Times.

...“To the degree that we can use a little bit of political jiu-jitsu and take what they’re kind of pinning us on and use it to our benefit either in policy, in legislation or in constitutional referendums — if that’s the direction you want to take — use the language of promoting solar, and kind of, kind of put in these protections for consumers that choose not to install rooftop."

“At an event with an unfamiliar, national audience, Mr. Nuzzo generalized his commentary and misspoke in reference to JMI partnering with Consumers for Smart Solar in any capacity,” McClure said in a statement.

Filed Under: advocacy, astroturf, energy, florida, solar

Comcast Paying Minority Rights Groups To Parrot Merger Support

from the repeat-after-me-if-you'd-like-to-keep-your-funding dept

"...what the Hispanic Chamber of Commerce did not mention in its statement praising the transaction was that it had collected at least $320,000 over the last five years from Comcast's charitable foundation, which is run in part by David L. Cohen, the Comcast executive who oversees the corporation's government affairs operations...And (top Comcast lobbyist David) Cohen adamantly rejected any suggestion that the corporation's history of supporting nonprofit groups and charities, particularly groups that serve African-Americans, Latinos and Asians, was motivated by a desire to build political allies."

"But even one of Comcast's own lobbyists said in an interview that the relationship with some groups had a transactional flavor. "If you have a company like Comcast that has been with them for a long time and continues to support them, they will go to bat for them," the contract lobbyist for Comcast said, asking that he not be named because he was not authorized to discuss the matter publicly, "even if it means they have become pawns."

Filed Under: advocacy, cable, lobbying, merger, television
Companies: comcast, time warner cable

Sandy Hook Video Game Prompts Everyone To Get Everything Wrong

from the know-what-you're-talking-about dept

It's been nearly a year since the Sandy Hook tragedy and if we've learned anything at all in the aftermath it's that we've learned nothing at all in the aftermath. Whether you're an advocate of gun control, an advocate for the link between violence and video games, or an advocate of the NRA, it really doesn't matter. The only thing to come out of the tragedy was a ton of talk, a boon for our stupid cable news networks' ratings, and the exceptional vacuum in which absolutely no conclusions were drawn and nothing was done. Twenty-six people were murdered, most of them children, and the needle hasn't moved in either direction one iota. Well done, everyone.

Wait, I forgot one other lesson we should all have learned from the tragedy: major media and a large swath of our fellow citizens somehow combine being reactionary and willfully ignorant in a way that would be cartoonishly hilarious if it weren't so damned maddening. And now we have the opportunity to re-learn that lesson as we watch the reaction to a "video game" inspired by Sandy Hook in which everyone gets everything wrong from every side possible. Here's how the game is described in the media:

"The Slaying of Sandy Hook Elementary" directs gamers to storm virtual classrooms with an AR-15 assault rifle in the same vein as Lanza and displays a kill ratio at the end. The game's release comes less than a month before the first anniversary of the Dec. 14 massacre.

"I'm just horrified," Llodra said. "I just don't understand, frankly, why anyone would think that the horrible tragedy that took place here in Sandy Hook would have any entertainment value. It just breaks my heart."

In an audio recording on the site, Lambourn describes himself as a U.S. expatriate from Houston who resides in Australia. There, he said, gun laws enacted after the fatal shooting of 35 people at a popular tourist destination in 1996 have stemmed the tide of violence.

The NRA called the simulation "reprehensible," but was reluctant to comment further, saying it didn't want to give more ink to "this despicable excuse for a human being."

"I find the exploitation of this unspeakable tragedy is just shocking," Blumenthal told Hearst. "From what I've heard and what's been shown to me, it's absolutely abhorrent. My hope is that it will be voluntarily taken down because it's offensive and hurtful."

A "sensible compromise" can still be reached on gun-control legislation in the Senate, Sen. Richard Blumenthal said on Sunday, saying the "shock and terror of Newtown" was still a major motivating factor for lawmakers.

Filed Under: advocacy, free speech, gun control, nra, over reactions, richard blumenthal, sandy hook

Yes, Journalists Should Be Advocates For Shedding Light On Secret Government Powers

from the say-that-again dept

Maybe it's just me, but I don't think anyone can read that without wondering whether Bart Gellman has slipped from journalist to advocate. And from there it's a short step to wondering whether he suppressed the guidelines in his earlier story because they didn't fit his preferred narrative. Somehow they were not worth disclosing when they might have blunted privacy concerns but they had to be disclosed once "they seem[ed] to demonstrate that the president’s words are untrue." Put another way, it seemed better to hold the truth back until it could be used to sandbag the adversary.

What @stewartbaker overlooks is that my advocacy is for open debate of secret powers. That's what journalists do

Filed Under: advocacy, bart gellman, glenn greenwald, government, journalism, openness, reporting, stewart baker, transparency

More Details Show IRS Targeted Groups Critical Of How The Government Was Run

from the ouch dept

The documents, obtained by The Washington Post from a congressional aide with knowledge of the findings, show that the IRS field office in charge of evaluating applications for tax-exempt status decided to focus on groups making statements that “criticize how the country is being run” and those that were involved in educating Americans “on the Constitution and Bill of Rights.”

Filed Under: advocacy, constitution, irs, non-profit, patriots, political targeting, tax exempt, tea party

The USPTO's Reality Distortion Field: Web Filter Blocks Critics Like EFF, Welcomes Maximalist Lobbyists

from the but-techdirt's-available dept

Access Denied (content_filter_denied)

Your request was denied because this URL contains content that is categorized as: "Political/Activist Groups" which is blocked by USPTO policy. If you believe the categorization is inaccurate, please contact the USPTO Service Desk and request a manual review of the URL.

For assistance, contact USPTO OCIO IT Service Desk. (io-proxy4)

Filed Under: advocacy, uspto, web filter
Companies: aclu, bsa, cdt, eff, iipa, ipi, kei, mpaa, phrma, public citizen, public knowledge, riaa