How The Dobbs Decision Will Lead To Attacks On Free Speech; Or, Why Democrats Need To Stop Undermining Free Speech

We've talked about the unfortunate bipartisan attacks on free speech, which are best understood as attempts to control the narrative. Republicans have been attacking free speech in multiple ways - from trying to ban books and take away teacher autonomy to trying to compel websites to host content against their will. Democrats, on the flip side, have focused on ridiculous attempts to force websites to monitor and control speech. Both of these are bad in their own ways and both are attacks on free speech. In both cases, they seem to be about trying to force others to view the world the same way they do, and that's the whole reason that we have the 1st Amendment around: to prevent that sort of nonsense.

This post is mainly targeted at those among you who support the Democrats' position that we need to hold companies liable for the speech of their users. We've seen bills at both the federal and the state levels, trying to force companies to take down certain speech. And when people point out the 1st Amendment problems with these bills, we often hear some nonsense in response about fire in a crowded theater."

But, in a post Dobbs world, this shit is a lot more serious, and Democrats providing justification for outright government-backed censorship is a real problem. Senator Ron Wyden highlighted this just before the Dobbs decision came out, noting that Republicans who successfully got Roe v. Wade overturned were absolutely coming for websites and speech next. Here's what Wyden wrote:

In coming months well-funded anti-choice extremists will launch a coordinated campaign to deluge websites and social media companies with lawsuits over user speech in Republican-led states where just seeking information about an abortion could become illegal. Just as anti-abortion activists worked to attack reproductive rights in statehouses across the nation, these fundamentalists will use the same playbook of coordinated laws and legal actions against the online speech of those they dislike. They've already targeted libraries and bookstores over LGBTQ books and classified health care for trans youths as child abuse.

You could say he was prescient. Or you could just say that he was observing the obvious next steps. And, now that Dobbs is here, exactly what he predicted seems likely to be happening. As the NY Times pointed out, one of the next big fights over abortion may be over the 1st Amendment. Specifically, that article highlights that just shortly before the Dobbs decision came down, the National Right to Life Committee released a model" state law for a post-Roe world that directly aims to criminalize speech online:

A top anti-abortion lobbying group, the National Right to Life Committee, recently proposed model legislation for states that would make it a crime to pass along information by telephone, the internet or any other medium of communication" that is used to terminate a pregnancy.

Many states essentially did just that before Roe v. Wade was decided in 1973. And it is not clear whether courts will find that the protections afforded to speech in the Constitution still apply to abortion rights supporters as they look to circumvent the raft of new restrictions.

And, as Ashton Lattimore points out at Prism, such laws would put all sorts of free speech concepts at risk:

In the United States, there's a long history of efforts to silence information concerned with the rights of marginalized people, and that's always included the work of journalists. In the 19th century, for example, Congress passed a gag rule" to prevent abolitionists from petitioning against slavery, and southern states passed laws that outlawed anti-slavery speech entirely. Critically, both historically and today, speech suppression laws not only hand bad-faith actors the tools of criminalization and fines to silence those they disagree with, but they can also normalize physical violence. Indeed, violence against journalists was widespread in the 19th century, and-crucially-not confined to the places where such anti-slavery speech was criminalized: In 1837, a pro-slavery mob killed abolitionist newspaperman Elijah Lovejoy and destroyed his printing press in the free" state of Illinois, while the following year in Philadelphia, a similarly-minded mob burnt down the abolitionist meeting space Pennsylvania Hall, which also housed the offices of abolitionist newspaper The Pennsylvania Freeman. Even after slavery was abolished, journalists faced constant threats to their safety for daring to accurately report on injustices like lynching, foremost among them being Ida B. Wells. And even in the present day, it's clear that speech-suppressive laws are part of a larger constellation of practices that embolden violence against the groups they target. Witness the spate of anti-gay and anti-trans violence in the wake of Florida's Don't Say Gay" law, and the primarily Black and brown teachers who've faced harassment, violence, and even death threats following anti-CRT" suppression of discussions about racial injustice in American society. Now, with a law specifically targeting abortion-related speech, the risks are especially dire since so many of the journalists leading the way on reproductive rights and justice reporting are women of color, who already face disproportionate harassment.

While there are many potential problems with this model law, the attack on speech shows up here, making it against the law to:

knowingly or intentionally hosting or maintaining an internet website, providing access to an internet website, or providing an internet service, purposefully directed to a pregnant woman who is a resident of this state, that provides information on how to obtain an illegal abortion, knowing that the information will be used, or is reasonably likely to be used, for an illegal abortions;

That would be a direct attack on free speech and the 1st Amendment. And, normally I'd say that it's unlikely that courts would allow this. But, seeing how this particular arrangement of Justices seems willing to bend over backwards to justify absolute nonsense to remove rights - especially around abortion - it's not difficult to imagine the Supreme Court magically finding the exception" it needs to make these kinds of laws constitutional.

And, for what it's worth, South Carolina has already introduced legislation that is modeled on this bill, and which would seek to punish websites. Other states are almost certainly going to follow.

And this is why Democrats need to stop handing Republicans the exact ammunition they need to attack free speech like this. I won't even bother asking where the oh, cancel culture is the biggest threat to free speech" people to speak up here because we all know they won't.

But, Democrats who have been whining about misinformation" and how social media has to be more aggressive censors, or who trot out the fire in a crowded theater" line are simply playing into the censors hands here. They're opening the door to this kind of nonsense and effectively justifying it.

Evan Greer and Lia Holland from Fight for the Future have an excellent companion piece to the Wyden piece above, noting that Section 230 is the last line of defense for abortion speech online. Democrats who are still attacking Section 230 today (including President Biden) are simply handing Republicans the tools they need to enable laws like the NLRC one above to criminalize speech.

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.

But, incredibly, the message doesn't seem to be getting through. Just this week, I received an angry hate mail from someone who insisted that my support for free speech was the real problem, and that it enabled disinformation online. But history has shown that government suppression of speech ends up silencing the marginalized and the powerless. And we see that with the NLRC model bill.

Free speech is essential at this time. Section 230 protects websites from the kinds of lawsuits that the NLRC bill would use to flood the system, and it's why it's so crucial that it remain in place. Removing it, and allowing states to pass laws putting liability on websites for speech the states don't like is bad no matter who is doing it. One hopes that at least someone within the Democratic party has enough sense to look at this model bill and realize that their own party's position is likely to make that more possible.