WASHINGTON — In the post-Roe v. Wade environment, Section 230 of the Communications Decency Act is more important than ever. The benchmark law is vital in protecting freedom of speech and expression on the internet and it protects all types of online platforms, including adult entertainment websites, social media networks like Instagram and Twitter, and video streaming services including Netflix and Hulu.
The conservative-majority U.S. Supreme Court recently ruled 6-3 to leave regulation of abortion down to the states and overturn Roe v. Wade. In previous writing for YNOT, I noted that Roe was more than just a vital ruling that vastly expanded reproductive rights. Privacy rights and rights to personal health autonomy, among a variety of other important legal doctrines, are derived from opinions laid out in Roe.
It is unfortunate that the conservative justices of the nation’s high court stuck to an extremely literal and mediocre definition of the Ninth Amendment which encourages in part the people of the country to have unenumerated rights and liberties that are inferred based on law. The right to an abortion on the federal level was an unenumerated right, per that doctrine, and the court wrongly stripped the country of it.
Now, Section 230 is the next flashpoint in the fight for information regarding abortion procedures, accessibility, and the consensus of major medical organizations. Anti-abortion groups are taking the step to restrict abortion access by lobbying to make it a crime or civil penalty to look up on the internet information regarding these procedures and clinics that provide broad reproductive health services. The protections provided by Section 230 are collectively in the crosshairs of organizations that support the overturning of Roe, and that buy into conspiracy theories and debunked public health panic associated with the production and accessibility of consensually produced adult entertainment material.
“Online platforms are within their First Amendment rights to moderate their online platforms however they like, and they’re additionally shielded by Section 230 for many types of liability for their users’ speech,” argues the digital rights organization Electronic Frontier Foundation. This means that the First Amendment and Section 230 work in tandem to provide safe harbor for online platforms that host content published by third-parties and offer these platforms broad latitude to moderate content. Section 230, while not a perfect law, encourages web platforms to self-regulate and protect their platforms in accordance with their terms of service.
Sens. Amy Klobuchar (D-Minnesota) and Elizabeth Warren (D-Massachusetts) recently issued a letter to Mark Zuckerberg, chief executive officer of Facebook and Instagram corporate parent Meta Platforms Inc., urging him to stop censoring social medial posts containing accurate and vetted information regarding abortion procedures and access in light of Dobbs v. Jackson, the benchmark ruling that eliminated Roe and constitutionally protected abortion access at the federal level.
“As a result of the court’s decision, it is more important than ever that social media platforms not censor truthful posts about abortion, particularly as people across the country turn to online communities to discuss and find information about reproductive rights,” Sens. Klobuchar and Warren argue in the letter to Zuckerberg.
TechDirt.com contributor Mike Masnick, writing critically of Sens. Klobuchar and Warren for asking Zuckerberg for these protections, suggests that “Senators stop meddling in the [First] Amendment protected editorial decision making of media organizations and (more importantly) stop trying to pass laws…that would effectively serve to silence more of the conversation about abortion that you (correctly) deem so valuable.”
Masnick references the efforts of both Senators to try and pass legislation that strips Section 230 protections from platforms because of concerns of public health misinformation and disinformation during the peak of the Covid-19 pandemic. YNOT reported on that proposal, the Health Misinformation Act, in the summer of 2021. Klobuchar introduced the bill with Sen. Ben Ray Luján (D-New Mexico), and Warren appeared to be supportive of the measure. Sen. Warren on different occasions has supported legislation that would carve out Section 230.
Masnick compared Klobuchar and Warren to the actions and bullshit coming out of the mouths of figures such as Sens. Ted Cruz (R-Texas) and Josh Hawley (R-Missouri) and their moral panic-inducing obsessions with masculinity and claims that watching porn is a leftist conspiracy.
“I mean, this is, yet again, the flip side of Republicans and their nonsense populist freakouts about ‘anti-conservative bias,'” Masnick wrote, noting that Klobuchar and Warren demanded information from a private company regarding its moderation policies for public social posts. “If Klobuchar and Warren are demanding this kind of information, and get it, then that just opens the door to Sens. Ted Cruz and Josh Hawley demanding the exact same info, but not about policies on abortion, but rather whatever new moral panic they have today.”
All this matters to adult entertainment professionals and performers because there is a coordinated effort to eliminate protections for legal and consensual sexual speech on the internet. While by no means do I wish to oversimplify these complex issues, the tightening restrictions on abortion, access to this medical procedure, and material about it from verified and trusted sources underscores the need to protect our right to sexual expression in the form of literature, art, video, audio and academic research as a vital element of our broader sexual freedom.
