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

DATE POSTED:September 2, 2021

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.