Well, this will be fun. As you’ll recall, in 2021, Texas signed into law a bill that effectively banned the right of companies to moderate content on social media. That law has been challenged in court, and while a district court tossed it out as uncons utional (and obviously so), the 5th Circuit reversed in a ruling so bizarre and incomprehensible, I still have difficulty understanding how anyone takes it seriously. That law is currently in limbo as the Supreme Court figures out what to do about it.
Still, as the law was being rushed through, we called out one area in which Texas laws could conflict, specifically regarding Texas’ new anti-abortion law that criminalizes aiding-and-abetting, which we feared would encourage websites to take down content around abortion, and the social media law, which says you can’t take down such content. Some people pointed out that the abortion law does have an exemption for “1st Amendment protected speech,” suggesting that maybe the two laws wouldn’t be in such conflict.
But, either way, it appears that Texas Representative Steve Toth wants to close that whole “1st Amendment” loophole. Toth, who swore an oath to protect and defend the Cons ution, apparently has skipped right over that 1st Amendment. Because he’s introduced HB 2690, which maybe one of the dumbest state laws I’ve ever seen (and I see a lot of dumb state laws).
The headline on the law is that it effectively makes anything related to “abortion-inducing drugs,” (which has become a key way in which abortions are performed these days) illegal. But, the law doesn’t just make buying or selling such drugs against the law, it requires websites that sell them <b>to be blocked</b>.
Pretty much everything about this law is blatantly, obviously uncons utional. It has a blanket prohibition on any attempt to “provide information on how to obtain an abortion-inducing drug.” And, it goes further than that, banning basically any actions related to the web that involve information on an abortion inducing drug, including a flat ban on doing any of the following:
create, edit, upload, publish, host, maintain, or register a domain name for an Internet website, platform, or other interactive computer service that assists or facilitates a person ’s effort in obtaining an abortion-inducing drug;
And there’s an anti-cir vention rule too. It says anyone who does the following violates the law:
Acreate, edit, program, or distribute any application or software for use on a computer or an electronic device that is intended to enable individuals to obtain an abortion-inducing drug or to facilitate an individual ’s access to an abortion-inducing drug
Hilariously, it claims that any “speech or conduct protected by the First Amendment” is exempted which first off, no , but second: that’s literally everything you listed, dip .
And, of course, the law provides a private right of action (i.e., anyone can sue) against anyone who does any of the above. So even granting the “except for speech protected by the 1st Amendment” (which is everything) what will happen is a flood of vexatious lawsuits against any website providing information on abortions.
A person, other than this state, a political subdivision of this state, and an officer or employee of this state or a political subdivision of this state, has standing to bring and may bring a civil action against a person who provides or maintains:
(1) an interactive computer service that allows residents of this state to access information or material that assists or facilitates efforts to obtain elective abortion abortions or abortion-inducing drugs;
(2) a platform for downloading any application or software for use on a computer or electronic device that is designed to assist or facilitate efforts to obtain elective abortions or abortion-inducting drugs; or
(3) a platform that allows or enables those who provide or adi or abet elective abortions, or those who manufacture, distribute, mail, transport, abortion-inducing drugs, to collect money, digital currency, resources, or any other thing of value in connection with that conduct.
So, basically, any website that provides information on abortions, or which sells abortion-inducing drugs, can be sued by anyone.
Free speech!
The bill goes further, explicitly telling ISPs they need to block websites that the government tells them to block (it actually lists out six websites it requires ISPs to block, just to make it explicit just how against the 1st Amendment this bill is).
RESTRICTIONS ON ACCESS TO CERTAIN INFORMATION AND MATERIALS ACCESSIBLE THROUGH CERTAIN INTERNET WEBSITES. Each Internet service provider that provides Internet services in this state shall 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, including information or material intended to assist or facilitate efforts to obtain an elective abortion or an abortion-inducing drug, including information or material accessible through:
(1) the following Internet websites:
(A) aidaccess.org;
(B) heyjane.co;
(C) plancpills.org;
(D) mychoix.co;
(E) justthepill.com; and
(F) carafem.org;
(2) an Internet website, platform, or other interactive computer service operated by or on behalf of an abortion provider or abortion fund;
(3) an Internet website, platform, or other interactive computer service for downloading any application or software for use on a computer or electronic device that is designed to assist or facilitate efforts to obtain an elective abortion or an abortion-inducing drug; or
(4) an Internet website, platform, or other interactive computer service that allows or enables those who provide or aid or abet elective abortions, or those who manufacture, mail, distribute, transport, or provide abortion-inducing drugs, to collect money, digital currency, resources, or any other thing of value.
Look, when you’re at the point that you’re literally writing out a list of websites that ISPS need to block, you might just be violating the 1st Amendment.
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