The Supreme Court’s stunning ruling in the Dobbs case, overturning Roe and triggering numerous state-level abortion restrictions, has significant implications for Section 230 and online censorship. Here is how that ruling, and potential new laws and regulations that may come in its wake, could lead to the adult industry being caught in the crosshairs of a culture war.
Those seeking abortions in the more restrictive states will likely turn to underground sources of information to access the newly criminalized procedures. Abortion pill providers, volunteers and online services will now be taking calculated risks to fill the void. In places where abortion is criminalized, providing this kind of assistance can be seen by law enforcement as facilitating or “aiding and abetting” illegal activity.
As legislators consider changes to Section 230 immunity in connection with abortion, it is important to note that such modifications often expand liability for other types of disfavored content.
Abortion information has been lumped in with “immoral” and “obscene” material since the 1950s, when Congress passed the current federal law prohibiting mailing of obscenity, 18 U.S.C. § 1461. In addition to imposing a ban on mailing “obscene” materials, the law prohibits the use of the mail system to send, deliver or receive “Every article or thing designed, adapted, or intended for producing abortion, or for any indecent or immoral use.” This presumably includes any information concerning the availability of abortion services or medication for self-managed abortions. While the constitutionality of this prohibition has not been tested since Roe was decided, the Dobbs decision clears the way for abortion to be treated as criminal activity at the state level, similar to prostitution.
Considering that FOSTA, the Fight Online Sex Traffic Act, Section 230 immunity and created a new federal law prohibiting promotion or facilitation of prostitution using the internet, there is a definite danger facing online service providers in this new era. Those seeking to restrict the free flow of information about the availability of abortion services will likely take note of how effective FOSTA was at decimating information about sex work online. Notably, the National Right to Life Committee has proposed sweeping model legislation that would prohibit offering “instructions over the telephone, the internet or any other medium of communication” or “hosting or maintaining a website, or providing internet service, that encourages or facilitates efforts to obtain an illegal abortion.”
Bills like these appear to be designed to allow criminal charges against internet architecture services that merely provide information about abortion-related products or services. Those who advocate for banning “misinformation” online may seize upon the wave of TikTok posts promoting the use of herbs for self-managed abortion, or “crisis pregnancy centers” masquerading as abortion providers, as grounds for further legislative action.
Naturally, the First Amendment may be a legal barrier against conviction under laws banning specific types of speech. However, litigation is extremely expensive, even more so when complex constitutional challenges are involved. Importantly, the First Amendment does not protect conspiring to commit, or aiding and abetting, criminal activity. More abortions will be treated as criminal in the post-Roe world. However, not all discussions of criminal activity rise to the level of conspiracy or aiding and abetting. To avoid litigating these thorny constitutional issues, online services may ultimately choose to mitigate their risks by disallowing dissemination of all abortion information on their networks.
For now, online service providers can shortcut these claims by asserting Section 230 immunity. When asserting this legal argument, online services need not prove that the information involved lawful activity or was otherwise protected by the First Amendment. However, Section 230 has become unpopular with both Republicans and Democrats. For example, federal lawmakers have proposed bills like the EARN IT Act and the SAFE TECH Act to roll back portions of Section 230 immunity. Opponents of Section 230 often point to the availability of nonconsensual pornography, underage content or defamatory material as grounds to reconsider the scope of immunity. Bills creating immunity loopholes to address these unlawful content concerns can be used to encourage online censorship of both abortion materials and sexually oriented expression by private companies. Notably, Texas and Florida have passed bills regulating content moderation decisions by social media companies, claiming that states have the authority to regulate Big Tech. While the federal courts have largely put these laws on hold, citing First Amendment concerns, efforts to chip away at Section 230 continue in earnest.
The undoing of Roe, and its holding that abortion is not protected by the federal right of privacy, will likely encourage anti-abortion activists to create new Section 230 carve-outs imposing liability on service providers who do not censor abortion-related speech. Even arguably well-intentioned changes to Section 230 could incentivize a wave of lawsuits against online service providers by groups seeking to restrict access to abortion information. The resulting bans may create a dangerous environment for those seeking harder-to-find pregnancy-related healthcare information.
As legislators consider changes to Section 230 immunity in connection with abortion, it is important to note that such modifications often expand liability for other types of disfavored content. As noted above, information about abortion has been linked to indecent and sexually explicit content in the past. If adult content is swept up in a new wave of Section 230 rollbacks, the First Amendment will provide the final guardrail in this battleground.
Lawrence Walters heads up Walters Law Group, which has represented adult entertainment clients for over 30 years. Nothing in this article is intended as legal advice. Contact Mr. Walters at his website FirstAmendment.com or on social media @walterslawgroup.
