New Texas Abortion Law Likely To Unleash A Torrent Of Lawsuits Against Online Education, Advocacy And Other Speech

from the though-230-will-help dept

In addition to the drastic restrictions it places on a woman’s reproductive and medical care rights, the new Texas abortion lawSB8, will have devastating effects on online speech. 

The law creates a cadre of bounty hunters who can use the courts to punish and silence anyone whose online advocacy, education, and other speech about abortion draws their ire. It will undoubtedly lead to a torrent of private lawsuits against online speakers who publish information about abortion rights and access in Texas, with little regard for the merits of those lawsuits or the First Amendment protections accorded to the speech. Individuals and organizations providing basic educational resources, sharing information, identifying locations of clinics, arranging rides and escorts, fundraising to support reproductive rights, or simply encouraging women to consider all their options now have to consider the risk that they might be sued for merely speaking. The result will be a chilling effect on speech and a litigation cudgel that will be used to silence those who seek to give women truthful information about their reproductive options. 

SB8, also known as the Texas Heartbeat Act, encourages private persons to file lawsuits against anyone who “knowingly engages in conduct that aids or abets the performance or inducement of an abortion.” It doesn’t matter whether that person “knew or should have known that the abortion would be performed or induced in violation of the law,” that is, the law’s new and broadly expansive definition of illegal abortion. And you can be liable even if you simply intend to help, regardless, apparently, of whether an illegal abortion actually resulted from your assistance.

And although you may defend a lawsuit if you believed the doctor performing the abortion complied with the law, it is really hard to do so. You must prove that you conducted a “reasonable investigation,” and as a result “reasonably believed” that the doctor was following the law. That’s a lot to do before you simply post something to the internet, and of course you will probably have to hire a lawyer to help you do it.

SB8 is a “bounty law”: it doesn’t just allow these lawsuits, it provides a significant financial incentive to file them. It guarantees that a person who files and wins such a lawsuit will receive at least $10,000 for each abortion that the speech “aided or abetted,” plus their costs and attorney’s fees. At the same time, SB8 may often shield these bounty hunters from having to pay the defendant’s legal costs should they lose. This removes a key financial disincentive they might have had against bringing meritless lawsuits. 

Moreover, lawsuits may be filed up to six years after the purported “aiding and abetting” occurred. And the law allows for retroactive liability: you can be liable even if your “aiding and abetting” conduct was legal when you did it, if a later court decision changes the rules. Together this creates a ticking time bomb for anyone who dares to say anything that educates the public about, or even discusses, abortion online.

Given this legal structure, and the law’s vast application, there is no doubt that we will quickly see the emergence of anti-choice trolls: lawyers and plaintiffs dedicated to using the courts to extort money from a wide variety of speakers supporting reproductive rights.

And unfortunately, it’s not clear when speech encouraging someone to or instructing them how to commit a crime rises to the level of “aiding and abetting” unprotected by the First Amendment. Under the leading case on the issue, it is a fact-intensive analysis, which means that defending the case on First amendment grounds may be arduous and expensive. 

The result of all of this is the classic chilling effect: many would-be speakers will choose not to speak at all for fear of having to defend even the meritless lawsuits that SB8 encourages. And many speakers will choose to take down their speech if merely threatened with a lawsuit, rather than risk the law’s penalties if they lose or take on the burdens of a fact-intensive case even if they were likely to win it. 

The law does include an empty clause providing that it may not be “construed to impose liability on any speech or conduct protected by the First Amendment of the United States Constitution, as made applicable to the states through the United States Supreme Court’s interpretation of the Fourteenth Amendment of the United States Constitution.” While that sounds nice, it offers no real protection—you can already raise the First Amendment in any case, and you don’t need the Texas legislature to give you permission. Rather, that clause is included to try to insulate the law from a facial First Amendment challenge—a challenge to the mere existence of the law rather than its use against a specific person. In other words, the drafters are hoping to ensure that, even if the law is unconstitutional—which it is—each individual plaintiff will have to raise the First Amendment issues on their own, and bear the exorbitant costs—both financial and otherwise—of having to defend the lawsuit in the first place.

One existing free speech bulwark—47 U.S.C. § 230 (“Section 230”)—will provide some protection here, at least for the online intermediaries upon which many speakers depend. Section 230 immunizes online intermediaries from state law liability arising from the speech of their users, so it provides a way for online platforms and other services to get early dismissals of lawsuits against them based on their hosting of user speech. So although a user will still have to fully defend a lawsuit arising, for example, from posting clinic hours online, the platform they used to share that information will not. That is important, because without that protection, many platforms would preemptively take down abortion-related speech for fear of having to defend these lawsuits themselves. As a result, even a strong-willed abortion advocate willing to risk the burdens of litigation in order to defend their right to speak will find their speech limited if weak-kneed platforms refuse to publish it. This is exactly the way Section 230 is designed to work: to reduce the likelihood that platforms will censor in order to protect themselves from legal liability, and to enable speakers to make their own decisions about what to say and what risks to bear with their speech. 

But a powerful and dangerous chilling effect remains for users. Texas’s anti-abortion law is an attack on many fundamental rights, including the First Amendment rights to advocate for abortion rights, to provide basic educational information, and to counsel those considering reproductive decisions. We will keep a close eye on the lawsuits the law spurs and the chilling effects that accompany them. If you experience such censorship, please contact

Originally published to the EFF Deeplinks blog.

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Comments on “New Texas Abortion Law Likely To Unleash A Torrent Of Lawsuits Against Online Education, Advocacy And Other Speech”

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Jojo (profile) says:

Isn’t it swell how one reactionary state can fuck over it’s own entire country by calling the shots and making rules and laws that override even the president all based on a nonsensical and insecure culture war that the nonsensical and insecure mob ruling the state desperately wants to win?

The Inmates are truly ruling the asylum right now.

Anonymous Coward says:

Re: Re:

This won’t be a win in any way, shape, or form.

The first Texas woman who is raped and forced to carry a fetus to term because she ‘missed the window’ will get them scrambling to control the backlash.

The first Texas child who is forced to carry a fetus resulting from rape or incest because she was afraid to report it and ‘missed the window’ will draw the ire of the entire nation.

The lack of exceptions makes it fairly obvious that they don’t expect the law to stand. I’m fine with letting it stand and seeing how it works out for those arrogant enough to think that’s the way it should be.

They’ve provided all the rope. It’ time to let them hang themselves with it.

This comment has been deemed insightful by the community.
That One Guy (profile) says:

Re: Re:

Funny how so many of the companies listed were so vocal about supporting women and women’s rights and yet when asked what their position was on the bill and whether they’d continue supporting those that voted for it they went dead silent or gave some empty PR response. Almost enough to make you think all those pro-women statements were nothing but PR fluff designed to give people an incorrect image of the company.

As for why TLR didn’t push back I think I might have found the reason, nine of them in fact:

But TLR told the Texas Tribune that "the group did not oppose the abortion law." TLR’s leadership includes nine men and no women.

That One Guy (profile) says:

Re: Somebody is going to test this

I imagine someone will the problem with that is that is poses one hell of a risk and I imagine a good many groups are weighing whether to risk trying to have this law struck by challenging it and potentially having the US supreme court ruling it valid or leaving it in all it’s corrupt glory but not having a federal ruling on abortion made in exchange.

Stephen T. Stone (profile) says:

Re: Re:

Given the political makeup of the Supreme Court at the moment, I can’t imagine anyone wanting to bring a case about this law before SCOTUS and risking the full overturning of Roe v. Wade. I mean, would you want to be forever known as the people/company responsible for putting the United States on the path to becoming Gilead?

That One Guy (profile) says:

Re: Re: Re: Not a good decade or more for women in the US

Yeah if this is going to be overturned it’s likely going to require unstacking the supreme court by expanding it and giving the republicans a taste of their own medicine, however until that happens this is almost certainly just a first in a great many such laws where abortion is for all intents and purposes made illegal on the state level and those pushing the laws just dare anyone to take the matter to the supreme court.

Stephen T. Stone (profile) says:

Re: Re: Re:2

Well, yeah, that’s been basically the whole point of anti-abortion laws since Roe v. Wade: They’re about either passing a law controversial enough to reach SCOTUS (and let them outlaw abortion for good) or passing a TRAP law that will stay on the books so abortion is still technically legal but that much harder to access.

TKnarr (profile) says:

Re: Re: Somebody is going to test this

I think I agree with the Slate article that the risk for the politicians behind this (as opposed to the religious groups) is that the Supreme Court will rule it valid. Up until now they’ve been able to push these laws as a way to play to their base, confident that the courts will strike them down and they won’t have to deal with the backlash from everyone not part of their base. Until the Supreme Court suddenly didn’t strike it down, and now those politicians are having to worry that the reality will be bad enough to trigger a public groundswell that’ll sweep them right out of office.

Though I’d give them one more thing to worry about and put a law in the pipeline barring providing any medical treatment to accident victims if that treatment would endanger the life of compatible organ-transplant recipients if the victim doesn’t die and their organs can’t be harvested (oh, and bar declining to become an organ donor if doing so would endanger the life of any organ-transplant candidate).

Yeah, I’m a vicious offspring of a female canine who fully believes "work to rule" should be deployed with extreme prejudice here.

That One Guy (profile) says:

Re: Re: Re: Somebody is going to test this

By punting the SC effectively did rule it valid, whether it will cause enough backlash to gut their power remains to be seen though I imagine the fact that they also passed a bevy of vote and voter suppression laws at the same time is likely to be very handy to counter that.

As for the proposed law it’s certainly monstrous but no more than the one they already passed, if you’re going to revoke bodily autonomy when exercising it puts the life of another life at risk it’s only fair to apply it to both men and women though the fact that it would strip male bodily autonomy would leave it utterly anathema to the same people who passed the abortion bounty bill I’m sure.

David says:

Re: Somebody is going to test this

That’s a whack-a-mole game since RB8 includes significant legal protection for the vigilante plaintiffs that precludes recovering any damages or cost from them.

Incidentally this setup means that if you want to do a nuisance lawsuit of any kind, you are best off to wildly accuse your victim of promoting or performing or abetting or undergoing an abortion.

Your lawsuit can be as frivolous and unsupported by evidence as it wants to, you are off the hooks for any costs you incur.

Breedon Dissent says:

Isn't Turnabout Fair Play

Given how vague this law seems to be wouldn’t it be possibly to sue the Governor or one of the legislators who voted for it? Just for something as simple as referring to Planned Parenthood as an abortion provider! After all that could be considered abetting abortions since it’s telling women were to go to get one.

At 10K per abortion it should handsomely pay for the cost of suing the creeps. Let the politicians bear the cost of having to defend themselves against their stupidly unconstitutional law all the way to the Supreme Court!

Ryunosuke says:

1) I would think that a state law cannot supersede the First Amendment. Which in this case limits the free expression and freedom of speech cannot be constitutional.

2) I don’t this the Texas law will survive on accords of the Establishment Clause. To say nothing if a govt body delegates governmental powers to entities outside of the government is a terrible idea (something I asked Popehat earlier this week), There DOES seem to be precedent regarding the Texas abortion law in the SOCUS.

Allow me to explain this one. If a government delegates a governmental power, say veto power of a state liquor license, to a non-governmental agency, say, a church, well that runs afoul of the Establishment clause, Enter: Larkin vs Grendel’s Den. FROM 1982! 39 YEARS AGO.

now the core problem is that for DECADES, the Republican Party, by large, has courted Evangelical Christians (and Christians at large for the most part), by enjoining anti-abortion in their campaigns and overall strategy. Now that this has become law, and "ANYONE (like, say, a Church) can sue anyone for aiding and abetting abortions, there is little doubt that this law was meant as a law establishing religion.

David says:

Re: Re: Re:

6-3 conservative majority says they can give 0 fucks about anything if it owns the libs.

In this case it’s 5-4. Roberts dissented with the idea that constitutional lines become irrelevant if one can own the libs. Which is actually rather conservative.

But yes, it does show that the McConnell/Trump endeavor of radical right court packing is being effective.

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Anonymous Coward says:

Judgements are all on computers.

If you get a judgement against you about that, you just break into their computers, change the intitial debt to a lower amount, and then pay off that lowered debt, and that will be the end of itg.

I did that when I was 17 to keep my father from having to pay a $2000 debt when I screwed up a machine in woodshop class. I broke into the school’s computer, knocked a digit off the amount, and then paid off the lowered amount of around $200, then that was the end of it. Becuase the books balanced, I got away with it.

The books would balance, and any audit of the books would not show anything.

If you are sued becaause of this law, just break into the court’s computers, change the intitial debt to lower amount, and pay it off as quick as you can, and you will get away with it.

David says:

Re: Re:

Interesting that the men in Texas think they can actually stop the women in Texas from even talking about their own body parts. Are these men that stupid, that much a bunch of fraidy-cats when it comes to lady-parts?

Why, yes… yes they are.

I got distracted but it’s easy to guess we were talking about the Taliban, right?

MikeVx (profile) says:

This is a bigger mess than it seems at first.

One detail about US legal systems that many people miss is that, as a practical matter, if not necessarily a point of law, the restrictions of your home jurisdiction follow you. What is illegal in your home jurisdiction is effectively illegal for you regardless of what the law says where you may be at the time of the act. If your home jurisdiction considers it illegal and they find out that you did it somewhere with a different opinion on the matter, you can be prosecuted. It is likely that this will be considered applicable to suits under the new stupidity.

Women in Texas are now under threat as any trip out of state (such as many women can be expected to do to avoid any reporting requirements that the new legislation may impose on doctors) carries the risk of being sued for attempting to hide an abortion. Taking that vacation could render a woman homeless as her assets are confiscated in judgements. (Even if they can’t take the house directly, no money, property taxes don’t get paid…)

You know there there are sleazeballs out there planning this already.

sumgai (profile) says:

Re: This is a bigger mess than it seems at first.

Look for a lot of women to be moving out of the state, permanently. With or without husbands, kids, family of any kind. It would be nice to see a large enough number of them do so, to make a non-ignorable statement to the world at large.

(My proposed slogan of such a movement would be: "If you fuck with us, you can’t fuck us!")

Tanner Andrews (profile) says:

Re: This is a bigger mess than it seems at first.

the restrictions of your home jurisdiction follow you

Not generally. Federal things may follow because of the reach into international commerce, but state laws tend to stop at borders. And, within states, more local laws stop at their borders: a person who lives in a dry county is free to purchase and consume spirituous beverage in the next county over. Me may even be able to bring home a bottle.

James Burkhardt (profile) says:

Re: This is a bigger mess than it seems at first.

Jurisdiction. Within the US, a law is only a law within the boundaries of the jurisdiction of the governing body. If I go to pahrump and get a prostitute, Las vegas can’t arrest me (prosititution is illegal in vegas, but not in nearby pahrump). That is why there are whole discussions in every court case about why the court has jurisdiction. we ignore those procedural bits in discussion because they generally are formalities, but just about every lower court ruling will go through and establish that the court has jurisdiction in the matter, and just about every appealate decision establishes that they are the correct appeals court to address the appeal.

Yes, the cops can arrest you on bullshit charges, they can also sometimes even go to trial over actions that are not illegal. But as a practical matter, they can do that regardless of you committing a crime. What they can’t do is convict you of a crime performed in a different jurisdiction. It is your absolute defense: Even if the claims are true, the court lacks jurisdiction over the alleged criminal conduct, and the prosecutor lacks standing to bring charges.

Your message is all about state action (thats what it would mean for your home jurisdiction to prosecute youl). But the discussion is about civil matters where your comments might make more sense but civil jurisdictional jurisprudence is complicated enough I can’t yet clearly express the distinctions between the tort enforcement cases you are likely thinking of and the mechanisms described here.

Side note: Judgements are not really the issue yet. As of right now, any suit would fail as unconstitutional. But if that stands, such a claim of unconstitutionality would be an affirmative defense, not a basis for a motion to dismiss, and that might be the case every time because of the way the law is written and the way the court ruled to not issue an injunction. The financial issues are the ruinous cost of defending against civil lawsuits generally and all the ways the law encourages swamping individuals with bad faith or low effort cases.

Stephen F Roberts (profile) says:

This is trouble waiting to happen

You don’t even need credible evidence to sue since there is little penalty for filing a claim. The law seems written to encourage abuse.

Don’t like your neighbor? "Well, I saw him in a car with a woman, he might have been talking to her about getting an abortion or taking her to get an abortion, I wasn’t sure, so I sued"

You might not even need to do anything else like show up for court. If you are lucky, the victim doesn’t show up and maybe you get a default judgement against them and get a windfall. If nothing else, you make them waste their time showing up for court to avoid that default judgement.

sumgai (profile) says:

Two more questions for the pot:

1) What if a woman has an abortion in another state, just a week before a previously planned move to Texas? Like as in she has already set up a household with all the trimmings that are required by law to be a resident of that state. Makes one wonder….

1a) And further to that, how do you stop the crazies who willfully fail to recognize that the law is not retroactive, and keep chanting "10,000 bucks", "10,000 bucks", "10,000 bucks"….?

2) What about military women/spouses stationed in Texas? If they’re on-base, does Texas really expect this law to have full force and effect in the same manner, as if the US Military is subject to local laws of this nature?

2a) See 1a) above, vis-a-vis the crazies not understanding that the US Military trumps State law for on-base activities. I foresee a lot of damaged egos seeking private revenge when they’re told "kiss that 10 grand goodbye, it ain’t gonna happen"….

This is got to be the Mother Of All Cluster-Fucks!

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