Where Texas' Social Media Law & Abortion Law Collide: Facebook Must Keep Up AND Take Down Info On Abortion

from the fucking-idiots dept

It’s always astounding to me how little most policymakers consider how many of the policies they push for contradict one another. On Wednesday, the Texas Senate easily approved its version of HB20, the blatantly unconstitutional bill that tries to prevent social media websites from moderating content that Texas Republicans want kept up — explicitly saying that Facebook must leave up vaccine misinformation, terrorist content, and Holocaust denialism. While the bill does include some language to suggest that some content can be moderated, it puts a ton of hurdles up to block that process. Indeed, as the bill makes clear, it does not want Facebook to moderate anything.

The legislature finds that:

(1) each person in this state has a fundamental interest in the free exchange of ideas and information, including the freedom of others to share and receive ideas and information;

(2) this state has a fundamental interest in protecting the free exchange of ideas and information in this state;

Of course, you may have also heard the other big of news out of Texas this week, which is that after the Supreme Court refused to block it, Texas’ extreme anti-choice law has gone into effect, more or less banning all abortions. But the law goes even further than that. It also says you cannot “aid and abet” someone getting an abortion, and “aiding and abetting” is defined quite broadly under the law:

Any person, other than an officer or employee of a state or local governmental entity in this state, may bring a civil action against any person who:

knowingly engages in conduct that aids or abets the performance or inducement of an abortion, including paying for or reimbursing the costs of an abortion through insurance or otherwise, if the abortion is performed or induced in violation of this subchapter, regardless of whether the person knew or should have known that the abortion would be performed or induced in violation of this subchapter

This is bizarre on multiple levels. First, it’s allowing anyone to sue anyone else, claiming that they “aided and abetted” an illegal abortion if they merely “induced” someone to get an abortion.

So… let’s say that someone posted to a Facebook group, telling people how to get an abortion. Under Texas’s social media law — remember “each person in this state has a fundamental interest in the free exchange of ideas and information” — Facebook is expected to keep that information up. However, under Texas’ anti-choice law — remember, anyone can sue anyone for “inducing” an abortion — Facebook theoretically faces liability for leaving that information up.

So who wins out? Well, it should be that both bills are found to be unconstitutional, so it doesn’t matter. But we’ll see whether or not the courts recognize that. Section 230 should also protect Facebook here, since it pre-empts any state law that tries to make the company liable for user posts, which in theory the abortion law does. The 1st Amendment should also backstop both of these, noting that (1) Texas’ social media law clearly violates Facebook’s 1st Amendment rights, and (2) the broad language saying anyone can file civil suit against anyone for somehow convincing someone to get an abortion also pretty clearly violates the 1st Amendment. Update: As has been pointed out, the abortion law does say, explicitly, that the aiding and abetting rule should not apply to 1st Amendment protected speech, so there is something of an escape hatch here, and the state can say that it never intended the law to target speech as “aiding and abetting.” I don’t see that as making much of a difference in the long run because (1) the 1st Amendment already protects such speech so you don’t need a law to say that and (2) it’s unlikely to stop people from suing over speech that they claim is aiding and abetting…

But, until the courts actually rule on this, we don’t just have a mess, we have a contradictory mess thanks to a Texas legislature (and governor) that is so focused on waging a pointless culture war against “the libs” that they don’t even realize how their own bills conflict with one another.

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Comments on “Where Texas' Social Media Law & Abortion Law Collide: Facebook Must Keep Up AND Take Down Info On Abortion”

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46 Comments
Anonymous Coward says:

saw the Supreme Court wants nothing to do with this new law in Texas then. strange how there’s double the number of males who are a part of the make up compared to women. i must admit, i dont know who voted which way though. but how are women supposed to make a decision when the time frame is so low that they may not even know they’re pregnant anyway? why should men have the deciding say/vote in something that affects women the most? usual selfish male attitude!

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Koby (profile) says:

Platforms Can't Induce

However, under Texas’ anti-choice law — remember, anyone can sue anyone for "inducing" an abortion — Facebook theoretically faces liability for leaving that information up.

Based on this logic, a paper company could be found liable if a bank robber writes a demand note and hands it to a teller. The more logical decision would be that, if FB is just acting as a platform and not a publisher, then they are not inducing anything. In fact, if FB didn’t do any moderation, they could probably escape all liability because they were not even aware of the post, akin to Cubby v. Compuserve.

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Anonymous Coward says:

Re: Platforms Can't Induce

as a platform and not a publisher

Please point to the text in section 230 that makes a ditinction between platform and publisher?

Here, let me help: 47 U.S. Code § 230

I’ll wait.

Also, while you’re at it, why don’t you want to tell us which conservative opinions are being censored?

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Koby (profile) says:

Re: Re: Platforms Can't Induce

Please point to the text in section 230 that makes a ditinction between platform and publisher?

As I mentioned, Cubby v. Compuserve is a good case. The platform wasn’t aware, and didn’t know, and didn’t control the speech. That’s the hallmark of a platform.

Also, while you’re at it, why don’t you want to tell us which conservative opinions are being censored?

This week’s censorship highlight is Shawna Chappell, mother of one of the American servicemen killed in the Kabul bombing last week. On Sunday, she posted an apolitical story on Instagram showing the last photograph that she had of her son alive, along with some words detailing the grief that she was experiencing. This post, and her account, was censored.

After the censorship was publicized in the media, Instagram restored the account, and of course explained that it was taken down in error due to a mysterious "glitch" that shall remain untold. But it’s clear that she got censored for her past comments, particularly those on other platforms, which were anti government and against Joe Biden. Folks who express opposition to the current administration cannot be allowed to gain notoriety.

Four years ago, gold star families who denounced the sitting president were hailed as heroes. This week, they get flushed down the memory hole until the techlash embarrasses them back into normalcy.

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Stephen T. Stone (profile) says:

Re: Re: Re:

Cubby v. Compuserve is a good case

That’s not Section 230, though. Show us where Section 230 makes that publisher vs. platform distinction. (Hint: You can’t, because it doesn’t.)

it’s clear that she got censored for her past comments, particularly those on other platforms, which were anti government and against Joe Biden

What evidence do you have that supports this assertion? For that matter, why aren’t you quoting the exact text of the post that got her post/account suspended from Instagram in the first place?

Four years ago, gold star families who denounced the sitting president were hailed as heroes.

That’s because they were railing against a thin-skinned small-handed authoritarian who thought of dead/captured soldiers as “suckers”. Conservatives who have railed against Joe Biden for the Afghanistan withdrawl are only doing so because a Democrat is in charge; when Trump proposed a similar withdrawl of forces from Afghanistan (a proposal that Biden ultimately honored!), Republicans either stayed silent or supported him.

Biden is a middling pissant centrist, don’t get me wrong. He won’t go down as even a good president when his term shakes out; he was voted in largely to stop the bleeding caused by Old 45. But let’s not act like Trump had any better plans for getting us out of Afghanistan without all the Taliban fallout. He didn’t even have a fucking replacement plan for Obamacare ready despite repeatedly saying he did; in no way did he have an actual plan for a clean military withdrawl from a decades-long war. And if Biden had passed this on to another president, regardless of party, I doubt they would’ve had any better plans.

The withdrawl was a shitshow, sure. But getting the U.S. out of Afghanistan was never going to be a clean affair. And instead of bitching about how Biden bungled the whole thing, ask yourself why we even needed to spend two decades in Afghanistan⁠—beyond enriching the military industrial complex, anyway.

This comment has been deemed insightful by the community.
Anonymous Coward says:

Re: Re: Re: Platforms Can't Induce

But it’s clear that she got censored for her past comments, particularly those on other platforms, which were anti government and against Joe Biden.

Prove it!

Folks who express opposition to the current administration cannot be allowed to gain notoriety.

Wrong again!!!

Here is a look at the daily list of top Facebook posts for Sept. 1:

  1. Fox News
  2. Ben Shapiro
  3. Franklin Graham
  4. CNN
  5. allkpop
  6. Breitbart
  7. Diamond And Silk
  8. Breitbart
  9. Ben Shapiro
  10. MovieWeb

Tell me, how have all these people, who directly oppose the current administration, gained notoriety on Facebook, if Facebook censors conservatives who oppose the current admin?

Your claims, shall we say, are without merit and are therefore invalid.

Care to try again?

Also, how does it feel to constantly get bitch slapped like this? None of your claims are actually provable (You can’t prove why her account was deleted,) and the ideas that you believe are true, can easily proven false (I just showed how your statement about folks not being able to gain notoriety is wrong.)

Are again, are you really this stupid thinking you won’t get called out on your wrong statements, or do you just blindly post comments that are provided to you by your Russian handlers?

This comment has been deemed insightful by the community.
PaulT (profile) says:

Re: Re: Re: Platforms Can't Induce

"This week’s censorship highlight is Shawna Chappell,"

Oooh… I love it when you supply actual names and verifiable incidents. That gives us a chance to prove how full of shit you really are! let’s go…

"she posted an apolitical story "

https://nypost.com/2021/08/31/mom-of-marine-faced-instagram-facebook-censorship/

"Prior to her posts about Instagram, Chappell wrote a scathing post about Biden, saying her son’s blood is on his hands. "

"Chappell went on to claim that Biden is “not the president of the United States of America,” "

Hmmm…. Apolitical? Really?

Why do you lie about the very basis of the story? Don’t you understand that your inability to present the truth does not help your case about fictional censorship? This is why you people go as far as possible to avoid stating verifiable data ‘ it takes 2 seconds to prove you’re lying once you name specifics.

That One Guy (profile) says:

Re: Re: Re:2 Platforms Can't Induce

I can’t imagine why social media platforms might be a little touchy about people claiming that the current president isn’t in fact the rightful holder of that office, I mean it’s not like there’s an example(and body count) this year of what that kind of rhetoric can lead to or more widespread problems that sort of thinking might be feeding into and from relating to the entire gorram election system…

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PaulT (profile) says:

Re: Re: Re:3 Platforms Can't Induce

Yeah, strange isn’t it? Googling for 2 seconds not only reveals that Koby is full of shit but gives a very good reason why Instagram might have a problem that’s got nothing to do with which "team" the woman is on. This is why he so rarely goes into specifics – it takes less time to disprove his claims than it does for him to name the "evidence" if he goes into too much detail.

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Killercool (profile) says:

Re: Platforms Can't Induce

Well, well, Koby. You just came out and said it, huh?

You want Facebook to stop moderating and leave everything up.

Why are you so fond of terrorists and child pornographers, that you wish for them to do their business undisturbed on facebook?

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Koby (profile) says:

Re: Re: Platforms Can't Induce

Terrorist death threats and csam are not opinions, and can be reported to the authorities and prosecuted. I don’t want FB to leave everything up. Rather, social media should return to good faith moderation whereby objective language is removed, such as profanity, commercial spam, financial scams, or any other types of illegal speech that you mentioned. Stop trying to police differences of opinion.

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Stephen T. Stone (profile) says:

Re: Re: Re:

Someone saying queer people are abominations who don’t deserve a place in society isn’t a “difference of opinion”⁠—it’s dehumanizing homophobia. Expressing that hatred in words could damn well inspire anti-queer violence. (If you think it can’t, you’re being willfully ignorant.) But under your logic, unless it crosses the line into illegal/unlawful speech or includes profanity or is part of commercial spam, that homophobic speech must be left up by any given platform⁠—even a decidedly pro-queer platform!⁠—because it isn’t “illegal speech”.

And all that leads me to once again ask you: What “conservative opinions” do you believe are being censored from social media, Koby? Be specific.

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That One Guy (profile) says:

Re: Re: Re: Platforms Can't Induce

It is just downright pathetic that you keep banging on the ‘the only speech by groups like ISIS are death threats’ strawman to try to avoid admitting your support of them, and trying to generalize into anti-moderation in general so you don’t have to own your positions isn’t helping you either.

That said just to be clear and allow you to really nail down your position as is important in all honest discussions which specific ‘conservative’ positions and politics are you thinking of when you claim that conservatives are being ‘censored’ and do you think that websites should be forced to host non-death threats by groups like ISIS, because texas republicans just showed that they do.

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That One Guy (profile) says:

Re: Re: Re:2 'I can't be the problem so it must be the platform.'

‘I demand good faith moderation for my bad faith posts and actions, with good faith defined by me to not include anything I or my buddies might say or do!’

The funny thing is that setting aside the inevitable screwups by moderation at scale and by fallable humans the social media platforms being complained about do engage in good faith moderation efforts, it’s just certain people/groups refuse to admit that because it would mean admitting that there might be very good and valid reasons why they keep being shown the door.

Anonymous Coward says:

Re: Re: Re: Platforms Can't Induce

whereby objective language is removed, such as profanity, commercial spam, financial scams, or any other types of illegal speech that you mentioned.

How the fuck do you fucking lump fucking profanity with illegal fucking speech, fuckhead?

Does fucking swearing and shit somehow fucking bother you, you whiny little bitch?

Seriously, just fuck off. You’re making a fucking ass out of your fucking self.

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Anonymous Coward says:

Re: Re: Re: Platforms Can't Induce

What is profane is an opinion. What is spam is an opinion. What is a scam is an opinion. Hell what’s illegal can be an opinion too.

It’s hilarious you do all this complaining on a website that probably should get rid of your bad faith arguments but doesn’t because they actually believe in the things you falsely claim to.

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James Burkhardt (profile) says:

Re: Platforms Can't Induce

… if FB didn’t do any moderation, they could probably escape all liability because they were not even aware of the post…

This is the end conclusion reached by the logic behind the ruling in Prodigy v Oakmont, the case whose ruling was so bad congress wrote a law to overturn it. Congratulations getting to that conclusion, 20 years later. Of course, to claim the logical decision would be to stop moderating assumes that a lack of moderation would have no effect on the business.

Evidence from Youtube’s various Adpocalypses and Techdirt’s own issues with advertisers speaks to the contrary. They wont want ads next to child porn. Pro-Terrorist content. A post with rampant racial slurs.

This ignores that just hosting, no matter how ignorant, pro-terrorist content, child porn, or instructions on how to get an abortion, is a legal liability until a court rules. Possession of Child Porn is a crime regardless of ignorance. You are still providing material support to terrorists. And its not clear that in the case of the abortion bill that courts would require red flag knowledge (as copyright law does), rather than just the knowledge that the tool is being used, somewhere, to violate the law (as regularly argued by copyright holders).

ECA (profile) says:

https://www.texastribune.org/2021/08/26/texas-house-voting-restrictions-bill/
Texas House passes new voting restrictions as Democratic hopes of killing the legislation wane

https://www.texastribune.org/2021/08/31/texas-abortion-law-supreme-court/
Texas law banning abortion as early as six weeks goes into effect as the U.S. Supreme Court takes no action

https://www.texastribune.org/2021/08/31/new-texas-laws-september-2021/
666 new Texas laws go into effect Sept. 1. Here are some that might affect you.

AC:
https://legiscan.com/TX/bill/SB8/2021
Thats the bill and vote. Have fun.

Anonymous Coward says:

It’s always astounding to me how little most policymakers consider how many of >the policies they push for contradict one another.

They literally do. not. care.

A legislator proposes a bill for one of two reasons:

  • Fulfilling a promise to a campaign contributor, or
  • Another line they can put in their re-election stump speech or fundraiser letter.
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Jojo (profile) says:

If there’s one thing we can learn from the whole shitshow in Texas is this:

The GOP might be the most insecure party I’ve ever seen in a political system. They are absolutely driven by emotional response and nothing else. Say what you want about the Democrats, but at least most of us have a grasp of logic and actually try to preserve the constitution in the long term. But for the GOP, it’s always about winning for the sake of it. Even as minuscule as an argument with someone from the other side of the political spectrum. It doesn’t matter if the victory is logical or moral, it’s always for the brief, fleeting feeling of winning.

The GOP makes the Roman Republic Senate look rational in comparison, and few of those senators were actual gang leaders.

This comment has been deemed insightful by the community.
Jojo (profile) says:

Re: Re: Re:

Thankfully that recall effort seems to be on the verge of mostly unlikely (emphasis on seems, after all complacency and apathy brought Trump). But it is a fine example of how batshit insane and petty the GOP has become. They’re recalling Newsom and spend hundreds of millions of campaign dollars—all because he had a really expensive dinner at a restaurant without a mask.

That whole fiasco reminds me of this one episode of an animated show called Justice League, when Lex Luthor created a fake, million-dollar presidential campaign just to piss off Superman. That is comparable to the new low of the GOP.

ECA (profile) says:

Re: Re: Re: Re:

The part I think is Not smart, as giving the corps 1st amendment rights, and then the corps declaring they dont have to listen to the gov. if they dont want to.
Then the Gov. giving money to the corps, THINKING the corps will follow the contract to improve or Do something to help this nation.
Even tho Capitalism is understood, fairly well.

That One Guy (profile) says:

But, until the courts actually rule on this, we don’t just have a mess, we have a contradictory mess thanks to a Texas legislature (and governor) that is so focused on waging a pointless culture war against "the libs" that they don’t even realize how their own bills conflict with one another.

‘That’s a feature, not a bug’ I’d imagine, as assuming they even checked before passing the two laws they probably consider it obvious that while all speech is equal some speech is less equal than others, and any speech like pro-abortion stuff clearly has to come down since they don’t like it.

Anonymous Coward says:

"knowingly engages in conduct that aids or abets the performance or inducement of an abortion, including paying for or reimbursing the costs of an abortion through insurance or otherwise, if the abortion is performed or induced in violation of this subchapter, regardless of whether the person knew or should have known that the abortion would be performed or induced in violation of this subchapter"

Even if it was done as a result of underlying medical issues, or the pregancy was the reusult of a rape? Yeah I can see how this is bullshit.

That One Guy (profile) says:

Re: My body my choice!... unless you're a pregnant woman.

Yup, apparently they dropped all pretense of not being completely evil this time around and rape and medical concerns are not valid excuses, so if someone in texas gets raped and ends up pregnant from it they get to have their bodily autonomy violated by being told that it’s their body only until someone else wants to use it twice.

Anonymous Coward says:

Damm libs! We jus gotta have them laws against abortion ‘cuz Jeezus says so, and to proteck our wimmen right! Lots of good Texas min like to screw there sisters and dawters since they cain’t get no one else, an’ we gotta proteck them to, so they kin vote for more years of Lord-god Trump and Ted Cruz! (That’s why we gotta also keep them darkeys from votin’!) Don’t you damm Yankee libs no anything?

Tanner Andrews (profile) says:

An Interesting Potential Issue

It appears that the State wants to officially stay out of the litigation, going so far as to only give standing to non-state employees. So, let us consider the possibilities.

Big Tex does something to fund an abortion, perhaps it is enough that buys a girl a train ticket over to a different state. Surely it would be enough to at least let someone consider suit.

Little Tex, a friend of Big Tex, sues. Big Tex defends on the ground that the statute is unconstitutional. Little Tex tells the court that, upon reflection, Big Tex appears correct, and they provide an agreed judgment to that effect, which the court accepts.

In such a case, the law appears unconstitutional. If Big and Little were imaginative, they might manage to get the case positioned so that it goes up on appeal, agree there, and have an appellate ruling to the desired effect.

Anonymous Coward says:

Re: An Interesting Potential Issue

Settling with your opponent is not a court ruling on the merits of the case, and does not create legal precedent in either state or federal court.

When you present a settlement agreement to the court, the court merely affirms that all parties entered into the settlement voluntarily, and the settlement terms are not obviously disproportionate to the severity of the legal conflict. The settlement terms do not (and cannot) bind anyone not party to the settlement. Writing down your constitutional reasoning in the settlement has less legal weight than writing it down in your diary.

Tanner Andrews (profile) says:

Re: Re: An Interesting Potential Issue

Not exactly settling. Parties set up the evidence and the legal memos, ask the judge to try the case on the paper. Each side provides proposed final judgment, but only one has reasonable support. Ideally, each side would review other’s proposed FJ to agree as to form.

Judge signs proposed FJ for the party with facts and law.

Done right, you have a real order with findings.

random commenter says:

the meaning of "induce" in the bill's text

Just wanted to clarify for everyone that in the text of this law, "induced" refers to medication abortions, in contrast with surgical abortions, which are "performed." So the argument about platforms hosting content "inducing" someone to get an abortion are a misinterpretation of the law.

Yes, the law is a mess and unconstitutional, but this particular issue isn’t part of the mess.

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