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Monday, July 22, 2024

North Carolina's New Abortion Law Is Also a Weapon Against Free Speech

North Carolina’s new law banning abortions after 12 weeks not only restricts abortion access in the state that saw the largest increase in abortions since the Supreme Court struck down Roe v. Wade, but is also the first example since the Supreme Court’s decisionof a state limiting what people can say online about abortion. This speech restriction will create confusion for lawmakers, tech platforms, and users alike, and ultimately undermine online expression.

The North Carolina law contains two provisions that restrict speech. First, the current law provides that “[i]t shall be unlawful after the twelfth week of a woman's pregnancy to procure or cause a miscarriage or abortion in North Carolina.” After a federal district court judge suggested that the law as written likely unconstitutional because it could cover someone advising another about how to obtain a lawful out-of-state abortion, North Carolina agreed that under the new law these actions would not be a criminal offense.

But the state’s abortion ban also prohibits purchasing an ad, hosting a website, or providing an internet service if the purpose is “solely to promote the sale” of an abortion drug taken outside of a doctor’s office, and this law has not yet faced a legal challenge. The law’s impact will depend on how courts interpret words like solely. An expansive interpretation could prevent platforms from hosting a wide range of abortion-related content and could limit speech rights for people within and beyond the state, since they could face legal liability if their posts are read in North Carolina. That might mean, for example, that a Twitter account with information about how to safely use an abortion drug like mifepristone would violate the law unless it were to block access for all pregnant women in North Carolina. If it doesn’t, Twitter and the account’s administrators could be fined for every piece of offending content.

Courts may find that these provisions are unconstitutional. In 1975, the Supreme Court held in Bigelow v. Virginia that Virginia could not prosecute a newspaper publisher within the state who printed an ad for abortion services that were legal in New York. But the court has since suggested that decision was predicated on a constitutionally protected right to abortion (which no longer exists post-Dobbs) and has given mixed messages about when it is constitutional to restrict truthful advertisements in states where the advertised activity is illegal.

Courts might also find that state abortion-related speech restrictions are unlawful when they conflict with federal law. For example, Section 230 was enacted in part to create a national standard that would prevent tech companies from having to comply with 50 different regimes. But state laws that impose liability on platforms for content they host, like the North Carolina law, conflict with this federal standard.

But whatever courts decide, laws like North Carolina’s that restrict expression will inevitably be mired in legal challenges for years, which will slow down the pace of legislation. Faced with laws that impose penalties for what users say, platforms will be forced to choose between restricting more content to limit their legal risk or restricting less and increasing the odds that they face repercussions. Over time, users will suffer too, since these laws will introduce uncertainty about their rights and corrode the quality of tech products.

North Carolina is the first state to use an abortion law as a weapon in the online speech wars following the Dobbs decision, but it probably won’t be the last. It’s common for model legislation to be introduced in several state legislatures at once. If one state succeeds in developing and passing a bill, it’s likely that the same approach will crop up elsewhere. In Texas and Iowa, lawmakers have already introduced bills that would enable citizens to file lawsuits against tech platforms if they host information that “assists or facilitates efforts to obtain elective abortions or abortion-inducing drugs.” South Carolina entertained similar legislation that would have imposed criminal penalties.

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The speech restrictions in North Carolina’s new law play into a national battle over online speech that Republicans and Democrats have been fighting for years. With debates swirling about misinformation and censorship, Democrats have advocated for tighter restrictions to control online speech they view as harmful, while Republicans have argued for more permissive policies to counter platform moderation they view as biased against conservatives. North Carolina’s law flips the parties’ positions, with Democrats arguing for more speech protections and Republicans arguing for more restrictions. But even then, the parties are still using speech policy to advance their broader policy agendas, leaving users and platforms caught in between.

This concern is not hypothetical. In 2021, Texas and Florida passed laws that restrict tech companies’ ability to moderate the content on their platforms in response to concerns that platforms disproportionately censor conservatives. Initial decisions upheld key elements of the Texas law, but significant portions of the Florida law have already been struck down by a federal appellate court. Both laws seem headed for Supreme Court review next term, in which case its decision will provide guidance about the role that the government can play in regulating online speech. But in the meantime, the legal uncertainty has taken a toll. Introducing laws that raise such significant speech concerns slows legislators’ reform agenda, as energy is diverted to defending the law in court rather than implementing it in practice.

Beyond the courts, there is the issue of how tech platforms will implement laws like North Carolina’s. Platforms will be hesitant to permit ads that run afoul of the rules and their compliance options may be limited by their technical capabilities and knowledge of their users. So when they face a choice about whether to censor content or violate the law, they will often choose censorship.

For example, North Carolina’s law applies only to content directed at pregnant women within the state. Some companies will be able to simply prohibit content for these users. But if a company can’t target based on state residence or doesn’t have enough data to reliably predict if someone is pregnant, it may choose to remove that content for everyone. A broad block will provoke backlash from users and reproductive rights organizations, since it might make it harder for pregnant people to get accurate information about their options and their health. But a narrow block could put the company in legal jeopardy, and subject it to scrutiny from right-leaning attorneys general and legislators.

What’s more, platforms may be unwilling to take compliance risks because it is uncertain how the Supreme Court would rule on the issue. In the decision overturning Roe, Justice Alito asserted that abortion is “fundamentally different.” That view may lead the court to carve out a new First Amendment doctrine in abortion-related cases. If it does, platforms could get caught in the middle of conflicting state laws, where complying with the law in one state might mean violating the law in another. This compliance minefield would undermine one of the central features of tech products to date: Companies offer a single product experience across state borders, and users are able to send and receive information seamlessly from one place to another.

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If the court doesn’t carve out a new doctrine, speech restrictions like North Carolina’s will be struck down. But even if this happens, the battle over online speech will continue. Legislators could pursue alternatives that would be more likely to survive court review. For instance, states could require advertisers to disclose that selling abortion drugs directly to patients is illegal in some states. That restriction would still have consequences for online speech, since it would impose costs on advertisers and likely cause some to not run ads at all. But it would burden speech less, and therefore would be more likely to be upheld in court.

Where courts will land is uncertain, and that uncertainty will present challenges for users, companies, and lawmakers. Users will not know exactly what they can and can’t say about abortion drugs online. Will a person in New York who posts about an abortion drug open herself up to the risk of prosecution in North Carolina? Platforms won’t know how much to restrict their advertising tools. Lawmakers will face uncertainty, too. It may be months or years before a plaintiff brings a case to challenge the speech provisions of North Carolina’s law, and it will take many more years after that for courts to resolve the issue. While they wait, the law’s fate will be in limbo.

Lawmakers can avoid this conundrum by separating the politics of abortion from the politics of online speech. Neither Republicans nor Democrats should seek to achieve their reproductive rights objectives by inserting provisions into abortion-related legislation that undercut constitutional rights online. If they commingle abortion and speech in ways that provoke constitutional challenges, they will undermine their own legislation, as courts delay implementation while they decide whether these provisions are legal and potentially even strike them down.

North Carolina’s new law establishes a new frontier in the battles over online speech. How courts, tech platforms, and other legislators respond will determine what users can and can’t say online about abortion, and will also indicate how much protection the First Amendment will provide for the future of online expression.

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