Section 230 Is a Last Line of Defense for Abortion Speech Online
Dobbs should be a wake-up call for anyone seeking to undercut the immunity protections afforded by Section 230 of the Communications Decency Act.
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FORCED-BIRTH EXTREMISTS ARE not satisfied with shutting down abortion clinics. They also want to scrub accurate information about abortion access from the internet. In a post-Roe world, defending online speech about abortion—and the ability for abortion advocates and providers to fundraise and organize online—is a matter of life or death. Democrats who have been misguidedly attacking Section 230 of the Communications Decency Act need to wake up now. If they don’t start listening to the warnings of human rights experts, sex workers, LGBTQ+ folks, and reproductive rights groups, Democrats could help right-wing zealots achieve their goal: mass censorship of online content about abortion.
Since the Supreme Court overturned Roe on June 24, frontline reproductive justice groups have been fighting back—on the ground, in court, and online. Abortion funds across the country have seen a massive influx of donations through crowdfunding platforms. Ad hoc groups have sprung up on places like Reddit and Facebook, where people are sharing resources and facilitating housing and travel for those in need. But all of this is fragile.
Texas has already enacted legislation, known as SB 8, that enables any individual to sue a person or institution for facilitating access to abortion care. That includes sharing information online about managing the abortion process, obtaining an abortion pill, or finding a clinic that offers abortions. The National Right to Life Committee has released a model state law that criminalizes providing or hosting information or assistance on how to get a medical abortion. It specifically says that anti-choice laws must be written to prevent state residents from seeking abortions in states where it is legal to do so. This law is likely to pass in several states.
Section 230 is the last line of defense keeping reproductive health care support, information, and fundraising online. Under Section 230, internet platforms that host and moderate user-generated content cannot generally be sued for that content. Section 230 is not absolute. It does not provide immunity if the platform develops or creates the content, and it does not provide immunity from the enforcement of federal criminal laws. But, crucially, it does protect against criminal liability from state laws.
This means that as Section 230 exists today, a lawsuit from an anti-abortion group concerning speech about reproductive health care or a criminal proceeding launched by a forced-birth state attorney general would be quickly dismissed. If Section 230 is weakened, online platforms like GoFundMe and Twitter, web hosting services, and payment processors like PayPal and Venmo will face a debilitating and expensive onslaught of state law enforcement actions and civil lawsuits claiming they are violating state laws. Even if these lawsuits ultimately fail, without Section 230 as a defense to get them dismissed quickly they will become enormously expensive, even for the largest platforms.
Forced-birth extremists are litigious, well resourced, and ideologically motivated. Tech companies care about making money. Rather than spending tens of millions fighting in court, many online platforms will instead “race to the bottom” and comply with the most restrictive state laws. They’ll change their own rules on what they allow, massively restricting access to information about abortion. As a result, countless groups, pages, online communities, nonprofits, and health care access funds could be shuttered and removed from the internet—from r/AuntieNetwork to the donation options and educational content on Planned Parenthood’s website. We’ll live in a country where lawmakers in Alabama, Mississippi, and Texas get to set the rules for online speech nationwide.
IN A RUSH to posture as “tough on Big Tech,” many prominent Democrats have unfortunately thrown their weight behind dangerous legislation that would lead to that exact result. The Safe Tech Act, for example, would amend Section 230 by removing a platform’s immunity from lawsuits if it hosts content that could lead to “irreparable harm.” It’s not hard to imagine how anti-choice groups would weaponize such a law to sue platforms they claim are in violation of state law. Similarly, the well-intentioned Justice Against Malicious Algorithms Act, which would subject platforms to liability for recommending groups to specific users, would almost certainly result in the downranking and removal of groups in which people discuss abortion access and reproductive health care. Another bill proposed by top Democrats would remove Section 230 protections for “health misinformation,” as defined by the federal secretary of Health and Human Services. Former president Donald Trump’s pick for this position was an anti-abortion extremist. How might he have interpreted such a statute? How will a future administration if Democrats lose power?
The Earn It Act, backed by a number of top Democrats, is even worse. If enacted, it would would blow a hole in Section 230 that anti-abortion groups could exploit. And it could coerce tech companies to install encryption backdoors, which would inevitably be used by law enforcement agencies in states like Texas and Mississippi to surveil and persecute abortion advocates, providers, and those seeking to terminate pregnancies.
Democrats should have learned their lesson by now. Sesta/Fosta, the last alteration to Section 230, got people killed. That legislation, purported to help combat online sex trafficking, has done the opposite, resulting in sex-worker attacks, arrests, self-harm, and suicide. Facing the threat of lawsuits and unwilling to stick up for vulnerable people in court, web companies aggressively de-platformed sex workers and LGBTQ+ communities. As attorney Kendra Albert of Harvard’s Cyberl Law Clinic explains, “Without Section 230, online platforms may face liability for distribution of information about abortion under both state civil and criminal law. As we've seen post-Fosta, even small amounts of potential liability have the potential to cause massive content moderation changes.”
Even some progressive groups that are generally more thoughtful about urging changes to Section 230 have called for a carveout around paid advertising. Reasonable as this sounds, post-Roe, such a carveout would make it nearly impossible for abortion providers and advocates to run advertisements for services that are illegal in some states, while their opponents could continue spreading anti-abortion propaganda.
Republicans have launched their own obsessive attacks on Section 230, crying “censorship” while attempting to use the weight of government to force private companies to host hateful and harmful content against their will. If Republicans gain more power in Congress in this fall’s midterms, which seems likely, there will be growing pressure on Democrats to find common ground on Section 230 reform. Inevitably, they’ll zero in on something that sounds great in election speeches, like “protecting kids” or “cracking down on opioids,” even if the legislation they are proposing would do nothing of the sort. This would be a catastrophe.
Democrats are right to be angry at Big Tech companies. I’m furious with them. They’ve built a data-harvesting empire that will provide the perfect infrastructure for mass surveillance and repression of abortion patients and providers. But meddling with Section 230 won’t fix any of the very real harms stemming from tech giants’ nontransparent and haphazard moderation practices, privacy abuses, or monopoly power. There is nothing more dangerous than clearing the path for censorship and surveillance at a time when the US government is lurching toward authoritarianism.
ON JUNE 28, The Intercept reported that the day after the Supreme Court decision, Facebook deemed a militant abortion rights group called Jane’s Revenge to be “terrorists,” subjecting posts about the group to greater restrictions than those aimed at armed right-wing militia groups like the Oathkeepers and Three Percenters. Three days after the Supreme Court decision, Motherboard reported that Facebook was banning posts in which people offer to mail abortion pills to others. Meta quickly clarified that this was “a mistake,” seemingly caused by overzealous enforcement of an existing policy against posts offering to mail pharmaceuticals. Still, these are harbingers of what’s to come. If platforms fear government crackdowns over user speech they host, they will err on the side of over-removal, even if it leads to more “mistakes” that impact people’s rights and safety.
We can’t trust profit-driven tech platforms to defend the free speech rights of marginalized people or fight in court to protect online access to abortion information if they face liability for hosting it. Democrats say they want to do everything in their power to protect access to safe abortion. If that’s true, they need to hold the line against attacks on online free speech and protect Section 230 at all costs.
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