Texas State Representative Steve Toth recently introduced a bill that targets the most viable form of safe and effective abortion access today—medication abortion.
House Bill (HB) 2690 seeks to prevent the sale and distribution of abortion pills like Mifepristone and misoprostol, but it doesn’t stop there. By restricting access to certain information online, the bill seeks to prevent people from learning about abortion drugs, or even being aware of their existence. It would also systematically incentivize people and companies to silence anyone who wants to speak about abortion pills.
If passed, HB2690 would make it illegal to “provide information on how to obtain an abortion-inducing drug.” This includes stopping people from making or maintaining websites or creating and distributing applications on the topic.
On top of going after online speakers who create and post content, the bill also targets internet service providers (ISPs)—companies like AT&T and Spectrum that provide access to the internet. HB 2690 would require ISPs to “make every reasonable and technologically feasible effort to block Internet access to information or material intended to assist or facilitate efforts to obtain an elective abortion or an abortion-inducing drug.”
In other words, Texas legislators not only want to make sure no one can start a discussion on these topics, they also want to make sure no one can find one. That creates glaring free-speech issues with this bill and, if passed, the consequences would be dire.
The bill is carefully designed to scare people into silence. First, HB 2690 encourages individuals to sue people or organizations that violate the proposed law. An “interactive computer service” can also be sued if it “allows residents of [Texas] to access information or material that assists or facilitates efforts to obtain elective abortions or abortion-inducing drugs.”
So, similar to Texas Senate Bill 8, the bill encourages anyone to file lawsuits against those who merely speak about or provide access to certain information. This is intended to, and will, chill free speech. The looming threat of litigation can be used to silence those who seek to give women truthful information about their reproductive options—potentially putting their health or lives in danger.
Second, in a more novel approach, the legislation targets ISPs and incentivizes them to be overbroad in what they restrict. The bill encourages people to notify ISPs of abortion-related content and “request that the provider block access to the information or material.” But as we’ve seen with other notice-and-take-down schemes, intermediaries are acutely vulnerable to improper censorship pressures because they have almost no incentive to defend their users’ First Amendment rights, particularly when removing that speech prevents them from being sued.
The bill also grants ISPs “absolute immunity” against claims arising from their compliance with viewpoint-based takedown requests. In other words, if someone sues them for censorship, they are well-shielded from facing consequences. This further tips the scales in favor of blocking more websites.
Finally, under HB 2690, government officials “may request or encourage an Internet service provider to comply with the requirements of this subchapter.” So despite its focus on private lawsuits, HB 2690 lets the state pressure intermediaries to remove speech.
In three different provisions of the 41-page bill, the drafters attempt to assure us that HB 2690 should not be construed to prohibit speech or conduct that’s protected by the First Amendment. But simply stating that the law does not restrict free speech does not prevent it from doing so. The obvious goal of this bill is to restrict access to information about abortion medications online. It’s hard to imagine what claims could be brought under such a bill that don’t implicate our free speech rights.
The bill’s imposition of civil and criminal liability also conflicts with a federal law that protects online intermediaries’ ability to host user-generated speech, 47 U.S.C. § 230 (“Section 230”), including speech about abortion medication. And although the bill explicitly states that it does not conflict with Section 230, that provision remains meaningful only so long as Section 230’s protections remain robust. But the Supreme Court is currently considering a case that might weaken 230, and Congress is likewise considering revisions. Any weakening of Section 230 will create more space for those empowered by this bill to use the courts to pressure intermediaries to remove information about abortion medication.
Whenever the government tries to restrict our ability to access information, or tries to decide which websites people may visit, our First Amendment rights are threatened. This is exactly what Texas lawmakers aim to do through the passage of HB 2690. Anyone who cares about free speech—regardless of how they feel about reproductive care—should contact lawmakers considering such legislation and tell them to oppose this bill and others like it.
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Categories: Electronic Frontier Foundation
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