‘So to Speak’ podcast transcript: That Facebook post about abortion could land you in jail

August 17, 2022

Note: This is an unedited rush transcript. Please check any quotations against the audio recording.

Nico Perrino: Welcome back to So to Speak, the free speech podcast where every other week we take an uncensored look at the world of free expression through personal stories and candid conversations. I’m your host, as always, Nico Perrino. In June the Supreme Court overturned Roe v. Wade, eliminating the constitutional right to an abortion in the United States. And while many of us expected states to pass laws restricting or expanding access to abortions, perhaps less expected was that some lawmakers would seek to pass laws restricting and criminalizing speech about abortion. Joining me today to discuss these efforts are two returning guests to the show.

Will Creeley is FIRE’s legal director, and Nadine Strossen is former ACLU president, Professor Emeritus at New York Law School, and in an exciting development, she recently joined FIRE as a senior fellow. Will and Nadine, welcome onto the show.

Nadine Strossen: Thanks so much Nico. Great to be back and wonderful to share the platform with Will.

Will: It is an honor Nadine, and Nico thanks very much for having me here. We got a lot to talk about.

Nico: We sure do. And you two recently teamed up on a co-authored piece. I think this is your first time co-authoring a piece together if I’m not mistaken. But you were writing for FIRE’s news desk an article titled, That Facebook Post About Abortion Could Land You in Jail if South Carolina’s Legislators Have Their Way. So, what are South Carolina legislators trying to do that if they have their way could have people who talk about abortion in that state in jail?

Will Creeley: Well, thanks Nico, I’ll jump in here first of all, and yeah that was the first time I’ve had the pleasure of writing with Nadine and it was an honor. I was joking around on Twitter that if you’d told me 20 years ago, back when I was a law student that one day I’d be co-authoring, 20 years in the future I’d be co-authoring a piece with Nadine Strossen about the criminalization of speech about abortion, my first reaction would be, “Awesome! Amazing!” And then my second reaction would be, “Wait, what the hell happened? What are we doing?” And it’s that second part that we should talk about.

The South Carolina bill you referenced bans knowingly or intentionally aiding or abetting an abortion, first of all, as you say that’s predictable and expected perhaps. But what perhaps maybe comes as more of a shock and is a concern for first amendment advocates like us is the inclusion of a prohibition on providing information, and here I’m quoting: “Providing information to a pregnant woman or someone seeking information on behalf of a pregnant woman, by telephone, internet or any other mode of communication regarding self-administered abortions or the means to obtain an abortion, knowing that the information would be used or is reasonably likely to be used for an abortion.”

And that includes – the legislators really spell it out in this bill, “hosting or maintaining an internet website, providing access to an internet website, providing internet service purposefully directed to a pregnant woman who’s a resident of South Carolina that provides information on how to obtain an abortion, knowing that the abortion would be used or is reasonably likely to be used for an abortion.”

And as Nadine and I pointed out in our piece, and as you know lots of other first amendment advocates have pointed out, everybody from Eugene Volokh to Evan Greer, and around the – around the horn, this is a remarkably broad prohibition that really could reach far beyond South Carolina’s borders to criminalize a wide variety of expressive conduct or frankly pure expression. Posting about an abortion, as we indicate in the title of our piece, advertising about abortions. Really there’s just any number of hypotheticals. Eugene Volokh, over at his website had an interesting hypothetical where just a straight news-reporting article about the opening of an – of an abortion clinic in North Carolina.

That in any way could be argued to describe the abortion clinic in a way that might provoke the interest or provide information to South Carolina residents about how to go over there and use the abortion clinic services could ostensibly fall under this rule. And so, it’s – it’s shocking in its breadth and really presents some concern and the key first test of what this post-Roe, post-Dobbs landscape is going to look like.

Nico: And it also just doesn’t seem to have an understanding of how borders work in the internet age, right? So, this idea of hosting or maintaining an internet website or providing access to an internet website, I just think about the local library, right? That gives access to the citizens of that community – access to the internet, right? And perhaps a citizen or a library visitor goes to a website like that one that you hypothetically describe in North Carolina, Will, and learns about abortion services in that state, and perhaps North Carolina where it’s not illegal to have an abortion. You – you advertise to people of other states, maybe it’s not even just North Carolina – citizens of North – of South Carolina, that local library and librarian might be held criminally liable, right, for providing that access. I’m just thinking of hypotheticals.

Nadine: Well, fortunately, we – we now have a federal statute that everybody loves to hate, including Democrats and progressives and others who support reproductive freedom, so-called section 230 of the Communications Decency Act. And that is really, really important in ensuring that anybody who provides access to third-party information, including the libraries and the internet service providers, social media, other online platforms, is immunized beyond the protection that they would already have under the first amendment, this federal statutory protection is designed to encourage them to allow others to post speech that might be attacked as illegal, but as to which they have this statutory defense.

And I think you know for all the Democrats who keep atta – in particular, who keep attacking section 230 from their understandable frustration about how Big Tech is throwing its weight around, I think they have to understand how dangerous it would be right now to eliminate or even substantially revise section 230. Then there will be complete incentive on the part of these companies to bend over backwards to avoid any possible liability by not putting on any information about abortion, given how broadly, over-broadly the law is written.

Nico: Nadine, can you give our non-lawyer listeners kind of an understanding of how laws work, insofar as like, section 230, federal statute, does that supersede any state law that South Carolina might pass?

Nadine: With very few – it supersedes all state laws. Thank you so much for that clarification, Nico. It does not provide immunity against federal criminal statutes. But against state civil and criminal liability it does.

Nico: So, one of the – the kind of narrowing – some of the narrowing language in that – in that South Carolina bill is purposefully directed to a pregnant woman who is a resident of this state. So, what does our experience tell us about how that might narrow the understanding of the law and, as a consequence, the first amendment problems with it.

Will: Well, I mean –

Nico: Will, do you want to take that one?

Will: Yeah, I’ll jump in here. I – you know, I think in many ways the chill is the point, right? So, you are asking the prosecutors in South Carolina to kind of take it on faith that you know you did or did not intend. And if you can have folks think twice before they post something, right, whether it’s the celebrity on his or her Twitter feed that Nadine and I describe in the piece for FIRE’s website, or the magazine, or the advertiser, if you can have folks stop for a second and wonder whether or not they will be punished, whether or not they will run afoul of the law, well then the law’s already done what I think is its intended purpose, right? It stigmatizes and chilled speech on abortion just by existing.

So, whether or not someone is actually prosecuted, the effect I think, I fear, will be exactly the same. And it’s a good point, I want to remember before I forget about your library example, Nico. Because we know in Oklahoma, we already have librarians who have been warned by their supervisors that helping patrons search for things about or information online and on library computers about abortion might run afoul of the current Oklahoma law. So, the – the chill has already started and it’s going to keep going.

Nadine: There – another type of law here is the one that Texas passed a while ago, notorious SB8, which goes even further and might – and has become a model for other states as well. It – it gives bounties to members of the public to bring complaints against individuals who are facilitating abortion. I can’t remember what the exact language it is, but similar to aiding, abetting, and conspiring. And there it doesn’t even matter whether the abortion actually takes place or not, there are financial incentives for successfully bringing to lawmakers, law enforcement attention, somebody who is in violation of the statute. And there’s no disincentive. Even if you have a frivolous complaint, there are no possible sanctions for you under the law.

Nico: I want to ask the question that’s probably at the top of mind for a lot of our listeners not very too far into this conversation, which is, okay, South Carolina passes a law banning all or most abortions. Which, I don’t think they’ve done yet. But let’s say that they, for hypothetical purposes, do. Abortion is now a crime in the state. And many states have laws that criminalize facilitating criminal conduct. So, if you are helping someone find an abortion, whether it’s in a state where it’s illegal, or out of state where it is legal, in the eyes of South Carolina, you might be seen to be facilitating criminal conduct. And you two address this head-on in the ar – in the article, saying there is some doctrinal tension between speech advocating future lawlessness, which is generally protected, and speech that facilitates imminent criminal conduct. And you point to some decisions by past courts upholding convictions for example for posting bomb-making instructions online, publishing a how-to book about contract killing, and mailing recipes for PCP. Now, I think for a lot of our listeners, they don’t really put abortion in the same category. Maybe some do, of course.

There are many conservatives who believe abortion is murder, but for the past 50 years, it has been legal in the United States and held to be a constitutional right. How – how do you address those concerns in this context, both culturally, where there’s an expectation that this sort of thing isn’t criminal, but also legally, where if you open the door to make kind of an abortion exception for facilitating criminal conduct, how does – how do the neutral principles then apply to bomb-making instructions, how-to books about contract killing and mailing recipes for PCP? Not saying you guys agree with those court decisions, of course. Maybe those were over-broad and wrongly decided as well.

But I think that’s the question at the top of the mind here is, abortion is now criminal, you’re helping someone get an abortion in this state, why are you not held criminally liable as well?

Nadine: Well, as we point out in the article, there are two strands of case law here. And I’m going to exercise my seniority to choose to describe the one that is more speech-protective and then I’ll defer to Will to explain the countervailing strand. Because one of the problems that – or challenges we have in first amendment law is that a lot of decisions that coexist with each other are in tension with each other at best, or sometimes even in outright conflict.

But from the pro-free speech perspective, I would want to strongly stress the 1969 unanimous landmark Supreme Court decision in Brandenburg v. Ohio. An ACLU case, I’m proud to say, in which the Supreme Court said that nobody can be held liable for inducing either lawless or violent conduct by somebody else unless a number of very strict requirements are satisfied. The speaker has to intentionally incite, and the court uses the word incite as distinct from advocating imminent lawless, or violent conduct that is likely to actually happen imminently. So, it – one could make I think a very plausible argument that that should be the tough standard against which South Carolina or other state laws are judged. And they do not rise up to that demanding standard. But unfortunately, there’s another line of cases which Will will tell you about.

Will: Yeah, that’s right. And I like that – that approach, Nadine. And I – I – I’m a pro-free speech advocate. That is the line of cases – the doctrinal line of cases that I would sure hope would prevail here. The other countervailing line in tension here is the carve-out for speech integral to criminal conduct. And that’s what you’re describing, Nico. The – the bomb-making instructions, the instructions about how to make PCP or Angel Dust, the instructions of – provided in a book about how to be a contract killer or how to hire a contract killer.

Courts have found that that kind of instructional speech that is quote-on-quote integral to criminal conduct, may be prohibited without running afoul of the first amendment. And it distinguished Brandenburg. So, to give you the glass half-empty view that is out there. And you know I – I think that we stand at a crossroads here, and as you astutely note, Nico, abortion quote-on-quote feels different, not only because it was constitutionally protected for 50 years, but because it’s such an intimate, individual, personal medical choice. It feels qualitatively different than hiring a hitman. Which I would still posit that case is wrongly decided by the court’s circuit anyways.

So, I want to be clear about that. So, that’s the choice here. And when we were writing the article, Nadine and I had a very instructive and useful back-and-forth about it where I – I’ve been carrying around in my head for weeks, Nadine, because I think you’re right, and my wife thinks you’re right too, by the way, that I’m being too much of a pessimist, right? That I should – should forge ahead with an optimistic and inclusive and fulfilling version of the first amendment ahead, which is that the first amendment protects this kind of speech about medical decisions.

And this you usefully pointed out in our writing process that the conservative wing, the pro-life wing of the court has itself identified very important reasons to keep the government out of medical decisions, to keep the government out of the discussions between a patient and a doctor in the so-called crisis pregnancy center question with regard to whether or not counseling to keep a baby should be free from government interferences. I think you noted earlier, Nadine, there’s been a push from progressive senators to regulate that kind of discussion. And in a recent Supreme Court case we had some clarity on – on those – the validity of those kinds of regulations. So, this is a – a complicated one, and we’ll be – we’ll be making the argument that we should have a hands-off government approach, rather than a – a hands-on.

Nadine: Well, let me now throw in a sobering note, I won’t call it a pessimistic note. Well, first the positive is that all of the cases that both Nico and Will referred to were decided by lower courts either federal trial courts or federal circuit courts appeal. The U.S. Supreme Court had – did not affirm any of those to the best of my knowledge. And – but here’s the sobering note. That justices all across the spectrum have had a very uneven record when it comes to free speech and abortion. And there is a pattern that if they favor the state law, they have one view on free speech, I mean whether it substantively advances or retards the pro-choice or the pro-life movement respectively, seems to differentially affect the free speech analysis.

So, way back in 1991, it was the conservatives on the Supreme Court who were anti-Roe v. Wade, it was still the law of the land. But really dramatically cut back on free speech in a case called Rust v. Sullivan in which they upheld a federal law that literally barred doctors and other healthcare professionals from giving any information about abortion at federally-funded family planning clinics even if a woman expressly asked for information about abortion there was a government-mandated script that had to be recited. Quote – and I still remember it after all these years – “This clinic does not believe that abortion is an appropriate method of family planning.” Close quote.

And that is the most egregious form of offending the first amendment. To go beyond barring somebody from expressing information, conveying information is – and in a health context particularly troublesome. But to actually have a government-mandated script, what we lawyers call compelled speech, in all other factual contexts, you know all of the justices, including the conservatives, would be saying you know we can’t imagine a circumstance that would allow the government to do that. And yet in the service of the anti-abortion cause, they upheld that.

So, I’m a little bit – I wouldn’t be surprised – and in fairness, I have to say this, as somebody who is both pro-choice and pro-choice with respect to speech, with respect to what we do with our bodies, just – and I see the connections there between those rights, I very much dissented from the liberal justices who upheld what I thought were excessive and constitutionally unjustified restrictions on anti-abortion demonstrators in the vicinity of abortion clinics. In that context, Justice Scalia and other conservatives coined the phrase “Abortion Distortion” that they said was being used to warp first amendment principles that were generally applied. But now I – I fear that we may see the same kind of “Abortion Distortion” but in an anti-free speech when it comes from speech that would facilitate abortion coming from the conservatives.

Nico: Nadine, where do you come down on the case that Will was referencing earlier, the NIFLA v. Becerra, I think it was a 2018 case involving the constitutionality of California’s Fact Act?

Nadine: Please – I think that was a really complicated case, and so that said, to me, it’s not clear what the correct answer is. I’m curious, did FIRE file a brief in that – in that case?

Nico: I doubt – doubtful because it was before our expanded mission.

Nadine: Oh, you –

Nico: But the California Fact Act, for those not familiar with it, mandated that crisis pregnancy centers in California provide certain disclosures about state services. And then Justice Thomas, famously said that throughout history governments have manipulated the content of doctor-patient discourse to increase state power and suppress minorities. So, you can – you can see how the shoe on the other foot side here is we could criminalize advice or conversations that doctors might have with patients in places, for example, like South Carolina –

Nadine: And –

Nico: If the bill were to be passed, recommending, or even just giving information to a South Carolina resident saying, hey in North Carolina abortion services are available. That could be a – that could be a criminal act and would seem to go against kind of the – the thinking that Justice Thomas had in 2018 involving crisis pregnancy centers in NIFLA Viba. So –

Nadine: And – and I would say you know the – the factual co – the devil is always in the details in these laws, and there were multiple provisions in the law and allegations that they were designed to prevent misleading information, which I think we would all agree government should have power to – to regulate especially in the healthcare context. But I – I’m just not familiar enough with the facts to know whether the – they satisfied that standard or not.

Nico: Well, I do want to ask, so that South Carolina bill that we were talking about before, is based on a piece of model legislation from the National Right to Life committee. Which it’s promoting across the country. So, the – the idea that this South Carolina bill will remain in South Carolina I think is sort of wishful thinking. Often these model bills are adopted by legislatures and legislators across the country. And in that model legislation, and I was just looking at it, in preparing for this podcast, instead of using abortion in these kinds of speech restrictive clauses, it uses illegal abortion.

So, for example, it says knowingly or intentionally hosting or maintaining an internet website providing access to an internet website, you’ll – you’ll recognize this all sounds very familiar to the South Carolina bill or providing an internet service purposefully directed to a pregnant woman who is a resident of this state, that provides information on how to obtain an illegal abortion, knowing that the information will be used or is reasonably likely to be used for an illegal abortion. South Carolina, they cut out that word illegal. So, it seems to implicate speech or legal abortions in other states such as North Carolina for example.

And therefore, and kind of in my mind seems even more unconstitutional. But I’m interested in hearing what you guys think as to whether this statute or this model legislation itself using that word illegal to qualify abortion, makes it more tricky from a constitutional first amendment perspective.

Will: Well, I – I’ll jump in here and take a first cut at it, and then I’d be curious for what Nadine says. My – my sense is that that is a – you know, you could read it broadly, right to say any abortion is inherently illegal under our laws no matter where you get it if you’re one of our residents, but I don’t think that’s – I think what James Bopp, the author of the NRLC model legislation is trying to do is narrow that so that the law only applies within the state to the act of abortion that the state legislators have criminalized. I – that’s what I – my guess is. And I think I saw somewhere in the piles of email that visit my inbox daily, I think I saw some comment from Bopp saying that that was his intent.

So, I – I think that –what the NRLC legislation is trying to do is tee up exactly the kind of doctrinal fight that Nadine and I were just describing. That’s my guess. But we shall see.

Nico: Yeah, that –

Nadine: Right, because again under the Brandenburg test as the Supreme Court expressly said even advocacy of illegal conduct is constitutionally protected. And but ironically, so that’s where drew the distinction between advocacy and intentional incitement. And in fairness, the facilitation cases are integral to criminal conduct cases that Will was describing earlier were very fact-specific. And the lower courts in those cases did find a factual context that went beyond merely providing general information. And – and – and that instead there were efforts to induce and incite and – and – and directly assist particular people with actually violating the law.

So, if – I think even consistent with those cases if you have a journalist or a librarian or some – even a clinic that’s putting general information out there, not targeting particular individuals, no record of trying to induce particular individuals to violate the law, they might be home free under both sets of cases.

Will: Yeah, that’s a great point, Nadine. I like that. That’s an excellent, excellent point, right? Just as you say, those cases involve targeted speech, a particular individual to do a particular thing and everybody knows what’s going on there. Here, right, if you write the New York magazine article How to Obtain an Abortion or How to Self-Administer an Abortion and you send it out to your subscribers nationally, and some of them happen to be in South Carolina, are you similarly you know criminally liable? Yeah, that’s – that’s an excellent point. So, right. I – I endorse that view wholeheartedly.

Before we get too far off-field Nico, I want to make sure that – to Nadine’s excellent and illuminating point about the Abortion Distortion and its lingering effects, it’s fascinating to see when we’re considering the protests outside of Justice Cavanaugh’s residence in Maryland following the decision you know of course we go back to a case Frisbee v. Schultz, a 1998 case where the court votes six to three to uphold a city ordinance against the constitutional challenge that banned picketing in residential areas. And what’s fascinating in that case, is the facts there involves anti-abortion demonstrators protesting outside of a – an abortion provider, a doctor’s house, right? So, you just see how these things turn.
Nadine: Yes.

Will: And I, you know, I always – in teaching these summer undergraduate interns, I always try not to become too much of a cynic, too much of a legal realist to say, well really, what we’re doing is effectuating the policy preferences of the justices. But boy, you know it’s awful tough, right? So, our job here as free speech advocates is to say remember what you said then, and stick to it now, right? It does not matter whose ox is being gored, the principles must guide you. So, that – that’s our mission. And we have chosen to accept it.

Nadine: And we were talking about James Bopp, I think is at least as well-known for leading the charge on a free speech rationale quite successfully against campaign finance restrictions.

Nico: Absolutely.

Nadine: Where he has an extremely broad concept of free speech. I happen to share it, but most liberals do not.

Nico: Right.

Nadine: And yet, in this context, he has a very different concept of free speech, although I’m sure he’s very strongly supportive of free speech rights of anti-abortion demonstrators. And so, you know I say that not at all in a sense of you know we’re better than that but just we have to be very, very careful that we don’t fall into what is a clear temptation. I – I also wanted to say, Nico, that there’s a long history of connection between restricting reproductive freedom and restricting speech about it. The infamous Comstock laws that were passed at the end of the 19th century and continued enforced into the 20th century – people I think mostly know them as outlawing so-called obscenity or pornography.

But those were the very same laws that outlawed the distribution of contraception. And – and – and any information about contraception. So, I do have to say you know there have been a lot of attacks recently, including in the libraries in public schools on so-called pornography. And this is something that could be weaponized, picking up on the historic tradition. That information about sexuality and choices about sexual intimacy and reproduction can get swept up in that kind of censorial crusade as well.

Nico: Will, do you want to add anything to that? I know – not to reveal your bookshelf, but I re – I know you’re reading a book about Victoria Woodhull right now that you’re fascinating with – fascinated with.

Will: I tell you what, I – I finished it a couple months ago, and it was – I’m going to recommend it, I’ve been pitching it to everybody. Because I – I – at times, when I was doing the dishes, I was listening to the audiobook, and my wife would come in and all of the sudden she’d be in the kitchen for 15 minutes just gripped by it. It’s Amy Sohn’s The Man Who Hated Women. I think the subhead is Sex, Civil Liberties, and Censorship in the Gilded Age. And I really highly recommend it.

There have been a lot of great books dealing with Comstock recently and Nadine of course is absolutely right. Amy Werbel’s book, Bob Corn-Revere’s book, I know both of those folks have been on this show and I – I commend everybody to read Amy Sohn’s book. I commend it to you as well because it’s gripping. And the resonances of it as I was reading it, Dobbs comes down and the resonance of it is just striking. The parallels are amazing. Reading –

Nico: Well, who is Victoria Woodhull? Will, I think there are many of our listeners who probably don’t know who she is.

Will: Well, she should be the subject of a major motion picture, I’ll tell you that much. She’s just got an absolutely fascinating story. Her and her sister Tennessee have this amazing almost Zelig or Forest Gump-like travel through the Gilded Age of America where she – at one point she’s running for president, she’s the first woman to open her own stock brokerage, she’s an incredible advocate for suffrage, free love, birth control – I mean, I won’t spoil for you here, right? This could be this whole other podcast.

But I just will say that when you see – think about Margaret Sanger, you think about Emma Golden and you think about Ida Craddock, the women who are jailed – and the men frankly, too, who were jailed for advocating for birth control, you see, just as Nadine says, this is a sadly rich tradition of criminalizing expression about sex. I was just at the Woodhull Freedom Foundation last week and as I told the folks there, speech about sex is the canary in the coal mine. It’s always the first on the chopping block. It’s the – the – the elusive but irresistible target of censors for years and years, right? So, this feels very familiar. It’s an old fight. And I think a righteous fight.

Nico: Can I just ask, because this is one of the cases that you bring up in your guys’ article about Bigelow v. Virginia. Because we talk about the speech that’s integral to facilitating criminal conduct. And then we also talk about the example of someone providing abortion services in the state of North Carolina, if South Carolina makes abortion illegal advertising those services and perhaps getting wrapped up in one of these laws that restrict speech about abortion within the state of South Carolina, understanding of course that we live in the internet age and sort of cabining your – the access to your website within state boundaries is – is fairly challenging as countries such as Russia and China have found out over the years.

But can you guys talk a little bit about this Bigelow v. Virginia case? Because I think it makes it very clear that advertising abortion services in places where they are legal is very different and very much a clear-cut first amendment – first amendment protected activity. Even if it is commercial speech as opposed to political speech, which traditionally has received a little bit less protection under the first amendment.

Nadine: I think that’s a very powerful precedent for challenging South Carolina and similar laws. Especially because abortion was still illegal in Virginia at the time. And the court relied on concepts of not only free speech but also federalism. Which is an important theme – another important theme here where conservatives are usually very much in favor of federalism, right? And the court talks about one state not being able to wield its power over conduct that is occurring in other states, i.e., if citizens in Virginia went to New York to obtain an abortion that would be legal in New – New York, there’s no way that that conduct could be punished, let alone information that is provided even within Virginia by a Virginia newspaper editor in that case, to Virginia’s.

And the court was very concerned about the potentially speech-suppressive impact in – in – in similarly to what we were talking about earlier. That the law clearly went beyond simply instigating or facilitating a particular person getting an abortion, a particular Virginian. And it talked about the great public interest in information about abortion, including the fact that it’s illegal and on what terms it’s available in other states, that it was important information for people within Virginia who were specifically seeking to reform the anti-abortion laws in Virginia. And I think what’s particularly striking about that case and makes it a really strong precedent now, Nico, is this was really the first time that the court protected what it called commercial speech. It had a lot of language and even holdings in earlier cases in which it was treating advertisement, which it clearly was, for products or services as entitled only to a lesser degree of free speech protection. And obviously, the court felt so strongly about the importance of information about this subject of public concern and political dispute in Roe v. Wade was just being decided at that time. So, constitutional debate just very analogous to the times that we’re in now. That it even for the first time strongly protected commercial speech.

Nico: Yeah, the court held that Virginia may not, under the guise of exercising internal police powers, bar a citizen of another state from disseminating information about an activity that is legal in that state. And the facts of the case, Nadine, as you allude to, involved an advertisement carried in a newspaper which led to someone’s conviction for a violation of a Virginia statute that made it a misdemeanor by the sale or circulation of any publication that encouraged or prompted someone to procure an abortion. So –

Will: I want to – I want to jump in there Nico and – and recommend that everybody read an article by the great Elizabeth Nolan Brown over at Reason and she did some reporting on – in writing about the first amendment battles yet to come, everything we’re talking about here. And she pointed out something that I didn’t know about Bigelow. That Bigelow was a student at UVA at the time.

Nico: Oh, interesting.

Will: Yeah, underground newspaper, right? So, he’s a student when all this is going on and I want to – if he’s – if he’s out there say thank you for standing up and fighting like so many of the great students you work with at FIRE. Because that can’t have been easy to do. And as Elizabeth Nolan Brown reported in Reason, going back to the old AP reports from July of – of ’71, Bigelow was fined $500 and quote with $300 to spend it on the condition that the newspaper, the Virginia Weekly, this underground newspaper which is distributed from the UVA campus, refrain from running abortion referral ads. And that part made – made it even more shocking, right?

We’re going to fine you $500 bucks, but if you shut up about abortion there, you stop running those ads about the women’s pavilion in New York City, then we’ll lessen it. Right? I mean that’s – that’s inflated as it gets. So, thankfully a great ’72 precedent, and yes, I think a very powerful guide for our way through the present thicket.

Nico: Yeah, it was a 1975 case so I imagine he – and I hope he is still around. So, if there are any of our listeners out there who want to do some internet sleuthing or perhaps know where he is, I’d love to have him on the show to discuss the case.

Will: Get him on the show! Get Bigelow, give him a call, right on!

Nico: I’m not – I’m not outsourcing my work here as a producer of this show, but by all means, if someone wants to do my work for me it would be greatly appreciated and I would of course give you a shout-out on the show. But Nadine, I mean what are some other concerns surrounding the speech related to abortion that you’re seeing happening right now? I know there’s a lot of concerns by tech companies, apps, social medial companies about how they might be implicated in this sort of sweep of abortion-related speech.

Nadine: Well, there have been a lot of reports about big online platforms – Twitter, Facebook and so forth taking down both speech by – that leads to complaints by pro-choice people and speech that leads to complaints by pro-life people. And in fact, in the last month, there have been competing letters sent by a group of Republican and Democratic members of Congress to these companies complaining.

First of all, the Democrats complained that to Google that if it does – if you do a search for information about abortion using various Google tools including Google Ads and its general search function and Google Maps, that they have some evidence or reports that show that a substantial percentage of the responses that come up point to what they call fake clinics. So-called pregnancy crisis centers. And they complain that that is deeply dangerous to women who are seeking abortions and think that that’s what they are going to be getting and don’t understand that they will instead be deterred from – from pursuing the abortion option.

And so, the Democrats basically demand that Google take down either refuse to provide links to those crisis centers or else at least put some kind of heavy warning that this is misleading information or misinformation. Whereupon that led to a group of Republican senators and members of Congress writing to Google and complaining, making exactly the opposite assertion. You know if you dare to change your search results or put up any kind of warning labels, we’re going to see that as an infraction of free speech and you know without any sense of irony, Republicans think – I think they’re both guilty of – of inconsistency, but since the Republican letter comes second, they are able to complain about the Democrats. And they complain about you know members of Congress and public officials throwing their weight against tech companies and pressuring tech companies and how inappropriate and inconsistent with the first amendment is, and then in the very same breath, what do they do?

They throw their weight and say you know and if you do capitulate to these demands from our Democratic colleagues, then we’re going to institute an anti-trust investigation. We’re going to look into you know taking away your section 230 immunity. And you know we’re going to look into other kinds of – we’re going to look into treating you as common carriers and subject you to intense regulation.

So, the tech companies are really coming under competing pressures here. And it’s not – therefore it’s probably the worst of both worlds for all of us in terms of free speech. Nobody – neither of those groups is saying you should continue to you know post whatever information is consistent with your own search standards and algorithms for determining what’s responsive to what users are looking for.

Nico: Nadine, can I actually ask you and Will, sorry, I just want to cut in because I – I’m just curious, Nadine for your position because I don’t think we’ve discussed it on the podcast previously, but –

Nadine: No.

Nico: You know you mentioned there are social media companies that are taking down speech related to abortion on all sides of the issue. And I just wanted to get your kind of perspective on how you think through social media companies doing that sort of thing. On the one hand, they’re private companies, they can create their own terms of service, they can apply their editorial standards inconsistently even if they wanted to. But on the other hand, I think most Americans, to the extent they have direct experience with the general nonlegal concept of censorship, they see it on social media. And so, they see it as censorship and are frustrated by it and – so I just want to – I’m just curious how you – how you kind of think through that kind of –

Nadine: Yeah. It’s – it’s –

Nico: Cultural but also legal questions.

Nadine: It’s a deeply complicated issue for exactly the reasons that you so well articulate, Nico, and I agree with you on assessing what the problem is and I really am flummoxed as to what a potential solution is. And I – I’m in very good company because people I deeply respect who work full-time precisely on that issue, not a single one of them to the best of my knowledge has you know firmly committed to here’s a way we can navigate respecting all the free speech and first – you know free speech concerns, right? Because even though –

Nico: Mm-hmm.

Nadine: It’s not a first amendment issue per say, in so – except it is a first amendment issue insofar as the companies have this first amendment right. And I would deeply oppose any heavy-handed government moderation or you know regulation of their content moderation practices. But I think we have to find some way to also allow the flourishing of free speech for everybody else who is dependent on using these powerful sites. And I was about to say that to the best of my knowledge people who are studying these issues full-time haven’t really fixed on a solution for reasons I respect.

They say this is so complicated, there are so many unintended potential adverse consequences that the most we can do is suggest these are paths that should be considered. You know we should consider a potential anti-trust approach; we should consider a potential common carrier approach. I – at the very least what I do support enthusiastically is you know massive increases in transparency so that at least we have information about what algorithms are being used to determine what is being directed at us. Because now we don’t even know. I think most people have the illusion that we’re making choices ourselves, without the understanding of the extent to which the information is being pre-screened and driven toward us. In an I –

Nico: But even that – that poses some first amendment concerns. If they don’t – I mean if they don’t do it voluntarily, right? With the idea that code –
Nadine: No. No.

Nico: Or computer code can be speech. And the reason TikTok is eating Facebook’s lunch right now is because their algorithm is more tailored and more sophisticated and serving up content that’s more relevant to users’ interests than Instagram’s algorithm is, for example. We know that firsthand at – here at FIRE. We produce a video that will go gangbusters on Instagram but not TikTok, or it will go gangbusters on TikTok, Will just had a – had a video go viral on TikTok with something like 315,000 views in like 48, 72 hours. So, congratulations on that Will. But the algorithms are different, right?

Nadine: Yeah.

Nico: And presumably they’d want to know what those secrets are.

Nadine: Yeah.

Nico: So, you can only be so transparent on that.

Nadine: And in the meantime, the modest proposal I’m making is just urging these companies and the way members of Congress are urging them to engage in various kinds of restrictions, I’m just urging them to please not do that, to please exercise their power in a way that will facilitate individual freedom of choice about what information we receive on this important subject. Whether that includes crisis pregnancy centers or whether it doesn’t should be up to us as individuals to decide what to look at.

Nico: So, I think we’ve got to wrap up here. We’re at about 45 minutes but I did – I did just want to add that this speech related to abortion while we’re talking about speech that might be from a – a liberal in many cases, in this context, conservatives should care about this issue as well. We have a case at the University of North Carolina Chapel Hill right now involving an executive order from the student government there cutting off funding to quote any individual business or organization that advocates for pro-life causes. And you can imagine that Students for Life at the University of North Carolina was very concerned about this.

So, we wrote into this school and just got word today, today is what, Tuesday? This podcast will go live on Thursday, so the news will have broken by then that the general counsel and the executive branch there said that no student groups will be discriminated against based on viewpoints. So, we got a fairly quick win there. But it’s just – it’s what’s good for the goose is good for the gander? So, you know and you restrict speech of pro-choice advocates it can be the pro-life advocates the next day. As we’ve seen so many times.

Will: Oh, my goodness, look at our case archives. We’ve got plenty of them. I mean we have so many instances of pro-life speech being censored on campus. Everybody – every censure thinks they’re in a righteous fight, right? Every censure thinks that no, this time I’ve got it right. And boy our case archives are replete. I remember pro-life anti-abortion group setting up miniature crosses on campus as an improved –

Nadine: Mm-hmm.

Will: Art installation to make their point about the lives of the unborn and those being trampled by vigilante student censures overnight who you know say I’d do it again, etc. You know we’ve got a lot of this. So, right, as you say good for the goose, good for the gander. Be nice if everybody would disarm and recognize that you’re not changing anybody’s mind this way, right? It’s not – this is not going to ultimately result in – in –in your view of it prevailing, right? I don’t think you can censor your way to societal acceptance. And if you did, you wouldn’t like it, right? Then we’re in Barnette chorused unanimity just gets the unanimity of the graveyard kind of territory.

So, yeah, we’ve got lots of cases like that and they’re all depressing as hell. So, I – I would recommend folks who wield the hammer of censorship today to consider what it’s like when you’re on the receiving end. [inaudible – crosstalk] [00:47:55]

Nadine: And we say that even if you know there were no censorship and FIRE went out of business, I think we wouldn’t mind, would we?

Will: No, we wouldn’t –

Nico: No, that’s always been our goal.

Will: Harvey – Harvey Silverglate and Alan Charles Kors thought maybe five years, right? That would – that would wrap it up. But then I had kids. And I’ve got a five-year-old and a seven-year-old and I can see that censorship is this old human impulse, right? Shh, quiet down Daddy. Shush. So, I think, okay. It lives anew. Every time you got two human beings together, one of them is going to say, you know buddy, would you just knock it off?

Nico: Well, I think we got to leave it there. Will, Nadine, I appreciate you guys taking the time to talk and hope to talk to you both again sometime very soon.

Nadine: Thank you so much.

Will: It’s my pleasure and honor, thank you both.

Nico: That was FIRE Legal Director Will Creeley and Fire Senior Fellow Nadine Strossen. They are the authors of the essay That Facebook Post about Abortion Could Land You in Jail if South Carolina Legislators Have Their Way and that essay is linked in the show notes and can be read by visiting thefire.org. This podcast is hosted and produced by me, Nico Perrino, and edited by my colleague Erin Reese. You can learn more about So to Speak by visiting our YouTube channel which is new. We used to host video versions of these conversations on FIRE’s YouTube channel but spun it out and now So to Speak has its own YouTube channel which can be found at YouTube.com/sotospeakthefreespeechpodcast.

We’ll also feature a link to the video version of this conversation in the show notes. But you can also find us on Twitter or Instagram by searching for the handle freespeechtalk or by liking us on Facebook at Facebook.com/sotospeakpodcast. Email feedback is welcome and appreciated at sotospeak@thefire.org and if you happen to know where Bigelow is, please send him my way. I’d love to have him on the podcast telling his story. If you enjoyed this episode, please consider leaving us a review on Apple Podcasts or Google Play, they help us attract new listeners to the show. I also take reviews on Spotify, which is helpful. And until next time, I thank you all again for listening.