They're trying to ban posting about abortion online
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This is really scary government censorship of online speech and it jeopardizes public access to vital healthcare information. But also like we just shouldn't have a government that censors what we say online.

Imagine messaging a friend on Snapchat about how to get abortion pills in the mail or making a social media post about reproductive rights and then getting arrested and fined hundreds of thousands of dollars. That's only part of what a proposed law in Texas that seeks to criminalize discussing abortion online aims to do. It's called HB 5510, and it would essentially criminalize speech about abortion in emails, on websites, in social media posts, and even in private messages.

The proposed law is so dangerous for so many reasons, and we're going to get into a lot of those reasons that affect free speech today. To help me break it all down, I have Jennifer Pintsoff, Senior Staff Attorney at the Electronic Frontier Foundation here with me. It's a nonprofit that fights for digital civil liberties online. She's been tracking this bill and sounding the alarm on what it could mean for free speech online. Jennifer, welcome to Power User. Thanks for having me, Taylor. Okay, so first of all, I want to start off, of course, with a little bit of a story.

Before we begin by saying nothing that you say here on this episode is legal advice. You are a lawyer, but you're just helping us break down this crazy bill. Can you tell me a little bit about what is in this bill? How does it work and what does it do? This is another attempt of Texas legislators to try and stop access to abortion pills, which is the most commonly used safe and effective means of abortion today, especially in states like Texas that have banned access to abortion.

One way that they're doing this in this bill is to try to control the information that Texas residents have access to online, right? So if you can't find information about abortion pills online, you can't order them. You can't learn about them. You might not even know they're an option. You might not know they exist. So the goal is to wipe this information from the internet.

and in doing so to silence the people that are trying to provide truthful and factual information about reproductive options. And how does that work in practice with this bill? How would it restrict access to information and speech about abortion pills online? So it's 43 pages, and it's incredibly broad and confusing. I don't recommend...

reading it. It was not fun reading material. First, it goes after online speakers who create or post content online. Kind of the operative provision is that it makes it illegal to just provide information about abortion-inducing drugs. There's several other provisions that prohibit different kinds of speech, and it's really so broad it can be interpreted to prohibit just about every way you can share information online. So whether you're posting on social media, communicating via email or message,

creating a website or a blog, all of that kind of falls under the umbrella of what they could be prohibiting here. And then in addition to covering like a really wide range of speech online, it doesn't just go after the online speakers themselves, but it also targets basically every entity involved in making the content available online. So if I write a post, it's not just me that could be covered

by the bill. It also covers the social media platform that I post on. It could cover the website owner, the service that hosts the website on its servers. It could be the messaging app that I'm messaging on could be potentially liable email service. So it really goes down the line of all the online services that are helping to make this content available to people in the state of Texas. They can be sued if they allow a Texas resident to access information that helps

get an abortion. Okay, let's back up and start with just the first part of what you said about how it targets anybody that's providing information or speaking online about these things. How does it go about finding who's speaking online? Like if I'm messaging a friend about abortion pills, could that potentially be regulated under this law? And how would they even know about it? It's one of the most interesting parts of the bill. It's structured as a bounty law.

So what that means is the enforcers of the law are private citizens. Basically gives the ability of any average citizen who sees this information being posted online, who receives a message, that private citizen can basically sue anyone posting this content, take them to court, and maybe win a pretty big reward. Minimum per each violation is $100,000. Wow. We can go into why it's structured this way. And there's a lot of kind of questionable reasons

reasons for doing it this way. But yeah, so it's like a bounty law that kind of empowers anyone to go sue anyone. $100,000 is a huge amount of money. So this bill essentially incentivizes other people to narc on each other, right? To go around and say, ooh, I heard that this person was talking about abortion, or I saw this person said something here, and I'm going to report them, sue them, and get this huge payout. It kind of deputizes the public to almost surveil each other in a way that

is far more comprehensive than the government could even imagine. That's definitely true. And one of the effects of this is that there's this like big looming threat of litigation, right? So there's this huge motivation for, you know, bounty hunters or these private citizens to

to find people and take them to court. So there's a threat of litigation that's looming over people, and that is intended to and will chill the speech, right? If you know that anyone can narc on you and you could potentially be dragged into court and have to defend a lawsuit, then you're less likely to provide this crucial healthcare information. I mean, you could exchange an email or have an online discussion about

abortion. And maybe the person that you are chatting with forwards that email or screenshots that text, or you make a social media post and suddenly you could be liable. That's true. And in addition to that, it could also just be a stranger. Normally in lawsuits, the plaintiff, the person bringing the lawsuit has to be like directly harmed and affected. In this situation with the bounty law, it could be a random stranger who has no relation to the

the person posting or the service that's involved. And they're not really experiencing direct harm in the way that we typically think about what it means to be harmed. So it really opens up who can get into court. Basically, anybody can sue you, right? Under this law. Anyone can sue you except the government.

Right. So that's the, that's another one of the, it's another feature of the bounty law that's like why it was chosen pretty intentionally is that when you don't have a government entity in charge of enforcement, I don't want to get like too technical, but it basically, it makes it harder to challenge the law in court. Exactly. Because it's people policing each other, not the government technically policing everyone else. What if I'm a journalist and

And I create a website, like a news website or something that shares information about legal abortion services online. And I'm not emailing or texting it to anyone. It's just my own website. Yeah. Given how broadly the bill is drafted, you could definitely be held liable for that activity under this law. And not just you, if you're the owner of the website, it also could be the person hosting the website on their servers. A lot of activity falls under the scope of this bill.

I want to dig into that last part that you said in your first answer, which is what you just brought up again here. It's not just even the speaker that's targeted. It's also the platforms, right? And the email services or the social media platforms that are hosting this content. What effect do you think that will have on these service providers and their willingness to host this type of content?

We already know that online services like social media platforms and websites, they often over-censor as it is because they're worried about being liable for users' posts. There's not really a big motivation for platforms to defend the First Amendment rights of their users. And anytime you subject them to potential legal liability, that's just going to tip the scales further in favor of over-censorship of the information. Yeah. And it seems like it's coming at a time as well when platforms are

already censoring so much reproductive justice content and information about abortion. I mean, it's already hard enough on some of these social platforms to find that information. It seems like this law is just designed to further incentivize social platforms and service providers and things to take down abortion-related content. Yes, definitely. There's a couple different mechanisms that they're employing here to kind of push platforms to take down this information and to over-censor it. So for

First, for example, if I'm a platform and I get sued under this law, you know, I get sued because there's a post on my social media platform that, you know, is problematic content according to these legislators. Then I can escape liability.

if I can show that once I learned that this content was on my platform, I promptly blocked access to their abortion-related information. So that's an affirmative defense to help you get out of liability. So basically, you can be shielded from liability if you find out about abortion-related content and take it down immediately.

This seems like it would incentivize the platforms to just take down anything that might be abortion related because they have to take action immediately if they want to be shielded from liability. Yeah, exactly. And it also grants absolute immunity. What does that mean? If I'm a platform and I took down your content and then you sue me because maybe I deny you service or I take down your content or...

shadow ban or whatever it is, if you sue me, the platforms have complete immunity against those claims. So any claim based on the restriction of access to this information. That seems crazy. So you can't even... The person who has their content taken down can't even sue.

That seems against what so many conservatives have been ranting about for years, which is that they feel like their content has been restricted and censored and shadow banned. And all they want is to kind of sue these platforms and make sure that their speech is hosted. However, in this case, it seems like they're sort of achieving the opposite. To be completely honest, you only have First Amendment rights against the government. A user can't bring a...

a First Amendment claim directly against a platform anyways. So, you know, you're reading this, you're like, why are they granting absolute immunity here? It really, in my opinion, is just so that these companies feel really empowered and feel not at all afraid of legal liability and so that they just over censored this content. Yeah, it seems like any content that

even has a hint of liability will be removed, which is going to make it even harder because now you have people scared to even talk about abortion online because they could get sued by somebody essentially bounty hunting online. And then you also have the platforms that don't want to carry any speech about abortion because of the liability. Is this bill problematic in any other ways? Yes. I can only imagine. So

I think it's important to realize that the threat of litigation itself is really chilling the speech, right? So you don't have to have a torrent of lawsuits that actually get brought. Just the law being on the books creates this atmosphere where people don't want to be dragged into court. And so the platforms are taking this content down. People aren't providing this information because they just are worried about having to pay hundreds of thousands of dollars to people.

So I think a good example of this is SB8, which was the heartbeat bill. It was passed in Texas before Roe was overturned. And it basically limited, you know, you couldn't have an abortion once the heartbeat of the fetus was detected, which is like really early. Because it's just like an electrical impulse. It happens at around 6 p.m.

weeks. And that's like super, super early. Like a lot of women don't know that they're pregnant by then. I just had a friend who didn't know she was pregnant for 22 weeks. So that law got passed and almost immediately all the Texas clinics just got into compliance with the law. They just stopped providing abortions

after six weeks, which is like most abortions. So there wasn't this torrent of lawsuits being brought by bounty hunters, suing people that was the reason that people were scared and got into compliance. It was really just the law being on the books that chilled people's right to get an abortion. They just got into compliance with the law. And the legislators achieved their goal just by having it on the books. There were not a lot of lawsuits actually brought under that law, but that didn't matter. Yeah, I think that's...

such an important point that you don't even need these lawsuits to necessarily happen, or only one or two even has to happen and go through and somebody gets charged, you know, or is liable for hundreds of thousands of dollars, that creates a massive chilling effect. I mean, I certainly if I realized that speaking about abortion in any capacity online, providing accurate information about abortion pills or something could put me on the line for hundreds of thousands of dollars in, you know, legal liability. Yeah, I would just not speak about it.

ever. And I think especially when you're thinking of people in a vulnerable position, maybe people that want abortions, maybe they have an unintended pregnancy, some of them are in dangerous situations, right? Or they're in abusive situations and they don't want to even take that chance because again, that could destroy your life. Okay. So Jennifer, are there any

other big problems with this law? There's a lot. So Texas is working really hard here to shield this unconstitutional law from being challenged in court in like a lot of crazy ways. So in three different times in the bill, they write that you can't construe this to prohibit speech or conduct protected by the First Amendment.

They're really saying like, this doesn't infringe on your First Amendment rights. Even though it obviously does. Right, exactly. So saying that it doesn't do it does not make that reality. And I can't think of claims brought under these sections that we're discussing, the censorship provisions. It's really hard to imagine a claim that wouldn't implicate free speech rights. And that's the obvious goal, right? Despite them saying over and over again that this doesn't prohibit protected speech,

The goal is to restrict information related to abortion online. Why are they putting that there? It's really just something they can wave to in court and say, no, we're not violating the First Amendment. Look, we say it. We don't say it once. We literally say it three times. But like I said, this is a censorship law. Right. Even if you couch it as non-censorship, the goal still achieves the censorship.

Exactly. It seems like this law is intent on just criminalizing so many different entities. We have individual speech and average people being subject to liability. We have the platforms. And there's also something in this law about judges, right? And other kind of court officers. Yeah. So again, this is an effort to kind of insulate this law from legal challenge to prevent people from

bringing lawsuits to say this law is unconstitutional. It has provisions that penalize lawyers and judges for bringing lawsuits that challenge the law or for ruling against the bill. What? How is that even possible? I mean, I have not seen it before and it doesn't seem to comport with our rule of law, but that's my perspective. Doesn't matter, I guess, in Texas. So if you try to challenge this law and you are a judge and you rule to overturn it, or you're a lawyer that wants to fight this law, you also are in trouble, basically?

Yeah. And it's complicated and it depends on a bunch of different factors. But like, for example, the law strips Texas state courts of jurisdiction even just to hear constitutional claims, which is pretty wild. And if they do, and like if they rule against the law, they're subject to big fines, like $100,000 penalties. Oh my God. Yeah.

That's Texas state court judges. And there's also provisions about attorney's fees and other costs. So it really is bending over backwards to try to keep people from challenging the law. This law restricts speech in so many ways. And the legislators know it, in my opinion.

So they're trying to insulate this law from legal challenges. And that's just not how our society works. We have judicial review for a reason. And it undermines our principles of rule of law. And it really is just antithetical to our democracy. So yeah, not good stuff. Yeah. It seems like there's just all of these laws, as you mentioned, where they know that these are censorship laws.

And you can tell that they know that there are censorship laws because they have built all of these supposed safeguards to protect these bills and if they become laws from any sort of legal challenges, right, that are speech related or censorship related. Yeah. And once the law gets passed and, you know, it's really hard to challenge, just the law being on the books chills people from accessing and providing care. And that's the goal here. Texas, Utah, there's like Florida, some of these states that are like worst offenders, in my opinion, for censorship laws, speech laws. But it seems like

this law is being passed in context of some broader legislation happening across the United States, right? So this is kind of an ongoing national effort to restrict not just access to abortion, but whether and how we can discuss it. First of all, in Texas, this is not their first bite at the apple. They wrote a very similar, really bad bill that didn't get very far. I think it was in 2023. So that effort failed, and then they revamped it, changed some stuff, and came back and

They're trying to push it through this time, and they're definitely getting closer than they did last time, which is terrifying. But it's not just Texas. So like right when, I think it was right around the time when Roe got overturned. So National Right to Life Committee came out with a blueprint bill that was meant to be used as a model in states that wanted to ban abortion. And one aspect of that bill was online speech restrictions. And so that has sort of been an impetus for states around the country to

look into censorship of abortion-related information. In South Carolina, they've tried twice to pass it. They're all a little bit different and do different things, but similar bill targeting online speech about abortion-related information, that bill failed both times. And then there's also a law that recently got introduced in Alabama. We're tracking that closely. But yeah, this is a national statewide bill.

effort. I feel like we're seeing an unprecedented amount of state laws that are challenging free speech rights. We're also seeing a lot of national laws to some laws that have not gone through, but there's a lot of really bad federal legislation that's also aimed at targeting speech rights. And I feel like that's a whole other can of worms we can get into. But

That's totally right. I feel like I started, you know, broke out of return when we had a Democratic presidency. And so I was really focused on states and all the states banning things that we should have constitutional right to. But then, and yet now it's a whole nother ballgame. There's the federal front. It's scary. I think there's also this war on the platform side.

And as you mentioned, right, like these are private companies. You don't have like a First Amendment claim against Facebook to like host your speech. But I think everyone at this point in time at least recognizes that we have this sort of duopoly between Meta and Google that controls a massive amount of speech online. And I mean, obviously, there's TikTok and X2. But these platforms are a major way that people access news information and information about health. I mean, we saw this in the beginning of the COVID pandemic. This is where people are going to get information about vaccines and things like that.

But it's also where a lot of young people turn for information about reproductive health and abortion related information. So I know that you've done also a bunch of other work kind of towards drawing attention to that. I guess, can you talk a little bit about how this type of bill intersects with this broader issue of social platforms increasingly restricting abortion related content on their

As we touched on earlier, we already know that platforms are often over censoring this just because they're worried about legal liability and there's not much incentive for them to keep this content up. And with the states increasingly banning abortion, access to accurate abortion information has never been more critical, especially online, like you said, especially people in states where abortion is banned, but also just, you know, young people and people across the country. That's where they're getting this information about their rights and their

ability to access certain health care. And we've noticed a troubling trend. I mean, it was happening before Roe versus Wade got overturned, but certainly it's increasing since the removal of abortion related content. Right. And often this content that's being removed, posts might be taken down or

People's accounts might be shut down, but it's all removing abortion-related content. And often that content is legal and factual information, like abortion pills can be mailed. And it's also being taken down many times without a clear justification as to why or without a really clear policy basis. And we've seen more and more examples. It's been reported on in the media.

Like you said, it happens across platforms, all the popular platforms. And so noticing this trend, we at EFF partnered with a coalition called Repro Uncensored to launch a campaign called Stop Censoring Abortion. And that campaign is...

is about calling attention to this issue. What we've done is we created a survey to collect stories. You can go to our website, you can type in stop censoring abortion into Google, and it'll take you someplace where that will get you to the right place. But we have a survey that we're asking people to report incidents of takedowns of this kind of content. And we're trying to collect these stories, kind of understand the trends. And then the goal is to

call attention to this problem and demand that there's increased transparency in the tech company's moderation policies and hopefully stop the censorship of this essential, sometimes life-saving guidance and resources.

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There's so much censorship. I mean, especially on meta platforms that I've definitely experienced. Everyone knows my drama with meta, but I've lost multiple accounts.

To community guidelines violations that I think were unjustified. But I think what's so scary, too, is the shadow banning. I've spoken to so many activists and reported on this over the years, but they'll start sharing information about abortion. And it's not even getting taken down explicitly, but their account reach is decreasing. Suddenly they can't monetize as much. And it's sort of this like quiet censorship that these platforms enact.

And as you mentioned, there is no transparency. There's no way to why that's happening. And also, as you mentioned, there's no specific legal reason that they're doing it. It's more this kind of fear that it might become a liability for them. And so just to be safe, it's downranked.

I think during Trump's first presidency and even into Biden's presidency, you had a lot of liberals calling for crackdowns on these platforms. And for good reason, right? Like there's so much rampant misinformation about it on these platforms. And I think they wanted the platforms to take a heavier hand in moderation. But I think when we ask platforms to take a heavier hand in moderation, they're often just going to sort of default to laws in the government and just like look at things that might be dicey for them and...

restrict that content or downrank it in their algorithms. So it seems like transparency and understanding a little bit more about how these moderation decisions are made would be really helpful. Yeah, transparency is key. And that's kind of why we launched this campaign, because one way we hope to be effective at putting pressure on the platforms is when users come together and...

activists come together and point out these problems and talk about it in the media and put it in the public square and really push for some change. So that's hopefully something that we can accomplish. I'm sure there's some people out there listening that are like, well, abortion's not at the top of my list. There's a lot of other rights we're losing right now. And I don't live in Texas. So why should I care about this law?

Yeah. So I think there's a lot of reasons why people should care about this law. First of all, Texas is often a blueprint in this area for other states. So if Texas is able to successfully pass a bill like HB 5510, then other states will likely follow. And as you pointed out, maybe the federal government will take it as a sign that they should try to pass something like this too. So that's one reason. And another is that the internet doesn't stop

at state lines. And the idea that you could just censor speech to Texans and not to everyone else in the country or in the world is kind of unrealistic. So if the effect of this bill is to take down abortion-related content, that's going to be taken down for everyone and not just people in Texas. One of EFF's law students was reviewing this bill

for me and she messaged me like, "This is some China level internet control." And I think that really nails it on the head. This is really scary government censorship of online speech and it jeopardizes public access to vital healthcare information. But also we just shouldn't have a government that censors what we say online.

I mean, well, obviously, we completely agree on that. I think it's so terrifying how normalized censorship is becoming online. And as you mentioned, these state laws don't stop at the state. I've talked about this with age verification as well. There's this idea of like, oh, well, we're only policing within Texas. But that's not true. These platform, their moderation policies aren't state by state. Their moderation policies are pretty broad, and they cover entire regions like North America. So as you said, it doesn't stop at state lines. If there are these sort of

heavy handed restrictions in Texas, these platforms are incentivized to just moderate that content on a much broader scale outside of Texas, because they're not going to have specific state level policies. And I think, as you mentioned, as well, like the way that these things trickle up to the federal laws is terrifying, too, because it comes at a time when we're seeing so many federal efforts to have, as I would also call like China level authoritarian censorship of speech. It's

It just seems like there's so many problems with this bill. Yeah. I mean, like what we talked about before about these weird penalties on judges and trying to insulate it from judicial review. Those are like attacks on the way our law functions. And that's if you could do it in Texas, then it's a model for other states. Also, I'd say that like even if you're not someone who cares about reproductive rights, if you allow a government to censor X information that they find problematic, like it could be Y the next time around.

So I think we all should be worried about what the government allows us to say or not say, to read or not read when it comes to online speech. So I really think that if this is passed, it will affect you, even if you're not a Texas resident, even if you don't care about reproductive rights. I think it has big implications for the country. So I think we've talked about so many of the free speech implications with this bill and the censorship that it would bring and all of the horrible...

things in terms of digital rights and online speech. But we should note that there are actually a lot of other problems with this bill that have to do directly with abortion and setting pretty scary precedents around abortion related stuff. And so in the show notes, I'm going to link to some stuff that other journalists, including Jessica Valenti, have written about the actual abortion stuff if you want to read any of that.

So Jennifer, what can people that have listened to this podcast episode, hate this law as much as we do, do about it? If you're a Texas resident, you should fight this bill for passing. And if you're not a Texas resident, you should tell your friends in Texas to fight this bill for passing. You should also, like we've been talking about, this is something that could very well be a blueprint for other states and for the federal government. So being vigilant about paying attention to your state legislature and

paying attention to what your federal representatives are doing and make sure that you are voicing your opposition to bills like this. That's one thing. And then along the lines of how to keep the platforms from just over censoring this themselves, I think if your content has been taken down that was related to abortion, then you should let us know. Report your incident to the Stop Censoring Abortion Campaign and we can together try to elevate this issue and put pressure on the platforms to stop this over censorship.

All right, Jennifer, well, thank you so much for chatting with me today. Thanks so much for having me and for being interested in this bill and this issue. All right, that's it for the show. If you like this video, subscribe to my tech and online culture newsletter, usermag.co. That's usermag.co where I discuss all of this stuff and more. Please also don't forget to hit the subscribe button below and let me know what you think about this law in the comments. Also, my national bestselling book, Extremely Online, is finally out on paperback. It has a beautiful new cover and you can pick it up wherever books are sold.

The Electronic Frontier Foundation also just launched the sixth season of their podcast, How to Fix the Internet. They've got a great episode out right now with Kate Bertash of the Digital Defense Fund, which provides digital security evaluations, staff trainings, resources, and software for abortion access to bodily autonomy groups. Digital autonomy and bodily autonomy are two sides of the same coin. So definitely take a listen to that podcast as well. Thanks for watching and see you next week.