In addition to the drastic restrictions it imposes on women's reproductive and health care rights, the new Texas abortion law, SB8, it will have devastating effects on online speech.
The law creates a group of bounty hunters that the courts can use to punish and silence anyone whose online advocacy, education, and other discourses about abortion provoke their ire. It will undoubtedly lead to a torrent of private lawsuits against online speakers posting information about abortion rights and access in Texas, with little regard for the merits of those lawsuits or the First Amendment protections afforded to speech. Individuals and organizations who provide basic educational resources, share information, identify clinic locations, organize trips and escorts, raise funds to support reproductive rights, or simply encourage women to consider all of their options, must now consider the risk that they may be sued simply for speech. The result will be a chilling effect on speech and a litigation club that will be used to silence those who seek to give women truthful information about their reproductive options.
We will quickly see the rise of anti-choice trolls: attorneys and plaintiffs dedicated to using the courts to extort money from a wide variety of speakers who support reproductive rights.
SB8, also known as the Texas Heartbeat Law, encourages private individuals to file lawsuits against anyone who "knowingly engages in conduct that aids or incites the performance or induction of an abortion." It does not 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 broad new definition of illegal abortion. And you can be liable even if you simply attempt to help, apparently regardless of whether an illegal abortion was actually the result of their help.
And while you can defend a lawsuit if you think the doctor who performed the abortion complied with the law, it is really difficult to do so. You must show that you conducted a "reasonable investigation" and, as a result, "reasonably believed" that the doctor was complying with the law. That's a lot to do before you just post something on the internet, and of course you will probably have to hire an attorney to help you do it.
SB8 is a "bounty law" - not only does it allow for these lawsuits, but it provides a significant financial incentive to bring 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 incited", plus their costs and attorneys' fees. At the same time, SB8 can often protect 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 to file meritless lawsuits.
In addition, lawsuits can be filed up to six years after the alleged "complicity" occurred. And the law allows retroactive liability: you can be held liable even if your โcomplicityโ conduct was legal when you did it, if a later court decision changes the rules. Taken together, this creates a time bomb for anyone who dares to say something that educates the public about abortion online, or even discusses it.
Given this legal structure and the wide application of the law, there is no doubt that we will quickly see the rise of anti-choice trolls - attorneys and plaintiffs dedicated to using the courts to extort money from a wide variety of speakers who support reproductive rights.
And, unfortunately, it is unclear when speech encouraging someone or telling them how to commit a crime rises to the level of "complicity" without First Amendment protection. Under the leading case on the subject, it is fact-intensive analysis, which means that defending the case on First Amendment grounds can be arduous and expensive.
The result of all this is the classic chilling effect: Many aspiring 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 withdraw their speech if they are simply threatened with a lawsuit rather than risk the penalties of the law if they lose or take on the burden of a fact-intensive case, even if they are likely to win.
The law includes an empty clause that it cannot be "construed to impose liability on any speech or conduct protected by the First Amendment to the United States Constitution, as applied to the states through the Supreme Court's interpretation of the United States of the Fourteenth Amendment. " of the United States Constitution. "While that sounds nice, it doesn't offer any real protection - in any case, you can already raise the First Amendment and you don't need permission from the Texas legislature. Rather, that clause is included to try and isolate the law from a facial First Amendment defiance, a challenge to the mere existence of the law rather than its use against a specific person. In other words, the drafters hope 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, financial and otherwise, of having to defend the lawsuit in the first place.
An existing bulwark of free speech - 47 USC ยง 230 (โSection 230โ) - will provide some protection here, at least for the online intermediaries that many speakers depend on. Section 230 immunizes online intermediaries from liability under state law arising out of their users' speech, thereby providing a way for online platforms and other services to obtain early dismissals of lawsuits against them based on of your hosting of the user's speech. So even though a Username you will still have to fully defend a claim that arises, for example, from posting clinic hours online, the platform they used to share that information will not. That's important, because without that protection, many platforms would preemptively eliminate abortion-related discourse for fear of having to defend these claims on their own. As a result, even a strong-willed abortion advocate who is willing to risk the burdens of litigation to defend his right to speak will find his speech limited if weak platforms refuse to publish it. This is exactly the way Section 230 is designed to work: to reduce the likelihood of platforms censoring to protect themselves from legal liability, and to allow speakers to make their own decisions about what to say and what risks to take with their speech. .
But there is still a powerful and dangerous chilling effect for users. Texas anti-abortion law is an attack on many fundamental rights, including First Amendment rights to uphold the right to abortion, provide basic educational information, and advise those considering reproductive decisions. We will closely monitor the lawsuits that the law promotes and the chilling effects that accompany them. If you experience such censorship, please contact info@eff.org.
