Even Epik says the Texas abortion “whistleblower” site violates its rules
arstechnica.com
arstechnica.com
Don’t think it’s comparable. If I have perfect vision, I don’t think I can sue a site for being unusable by blind people. Actual injury must be shown.
Similarly, Prop 65 allows for direct, private civil suits. Although it has seen some reforms in recent years, it took some really egregious settlements before that happened.
TL;DR: You can thank Californians for importing their crappy legal theories into Texas.
Instead, this is a way to get around constitutionality since it's not the government who is violating the constitution. Never mind all of other constitutional bits about due process that are being horribly trampled on (such as allowing people to sue without standing...).
It is certainly the end of medical privacy in the US, but it may even be the end of the Supremacy Clause, which gives the federal government the ability to pass laws that override state laws.
It's difficult to overstate how much of a threat this law is to the US Constitution.
https://www.texasmonthly.com/news-politics/meet-the-legal-st...
Edit to add because I guess it wasn't obvious enough: The strategy would force the Supreme Court to quickly strike down both laws.
Now, I am not of the opinion that something has to be explicitly protected in the constitution for it to be a right. I prefer to assume a limited view of what behavior government has the authority to limit. However, if something is not explicitly protected in the constitution, then it is at least up for debate.
There's procedural implications for this distinction as well: the Supreme Court can overturn its prior precedent (as Brown v. Board of Education overturned Plessy v. Ferguson). But the Supreme Court cannot overturn the text of the Constitution itself. Only an amendment by Congress can do that.
EDIT: Just to clarify, that procedural distinction means that the Supreme Court could uphold the Texas law while overturning a similar law restricting gun ownership without contradiction.
Aside from some archaic language, the second amendment is actually fairly clear. It is clearly talking about guns, and the phrase "shall not be infringed" is fairly strong, clear language.
On the other hand, the 14th amendment say nothing about abortion, and there's no reason to suggest the authors of that amendment had abortion in mind when they wrote it.
That does not mean that such a right does not exist, or that it needs to be explicitly mentioned in the Constitution to receive protection, but any judge who wants to assert that such a right exists is going to have to do a lot more work than one who wants to assert the existence of an individual right to own guns, even "assault weapons" (which is a largely nonsense category anyway).
That the Supreme Court basically rubber stamped it is absolutely insane. Even operating on the assumption that the conservative majority on the court wanted to overturn Roe without having big headlines saying "Roe Overturned" choosing this absolutely insane law to do it is not going to do them any favors in the long term. The chance of this backfiring is so high that it's hard to imagine anybody looking at it and saying it was a good idea. How can they not be feeling like Roger Taney after Dred Scott right now? This could be the beginning of the end for restrictive abortion laws nationwide, to so decisively win a battle that costs you the war.
Edit: Wow, this is getting downvoted fast. I'm leaving it up so history can be the judge. I'm feeling confident that effectively issuing a Letter of Marque to every single US citizen on their own constituents is will turn out badly. This law is only going to be abused, and severely, unless the sensible minds in the courts wake up and put it on hold.
The Court rejected an emergency stay. It did not uphold the law. That will come after hearings next year.
[1] https://www.foxnews.com/politics/texas-6-week-abortion-ban-p... (However, preliminary estimates suggest that the law could prevent roughly 132 procedures per day, or 4,009 per month.)
[1] https://www.theguardian.com/world/2021/sep/03/texas-abortion...
Wait, so if I had even a thin basis for a suspicion, I could file cases against the legislators who voted for the bull?
From what I’ve read there is nothing preventing you from filing frivolous suits against the legislators. They have to defend themselves or face a summary judgement. The law as written is wide open for abuse. This could be amended with a provision that excludes legislators and rich politically connected people.
Granted, that provision is probably unconstitutional by itself, but it just goes to show you that the banning abortion part of the law is the least problematic part of the entire thing.
Exactly, just because it isn't specified or enumerated as a right in the constitution, doesn't mean it's not a right... right?
> The fact the Texas legislature came up with that completely ridiculous scheme is not that surprising.
People on this site tend to downvote if you talk based on perceived state attitudes. The same thing happens if you make blanket statements about California, it's citizens, or electorate.
But the law is crazy, unconstitutional and would start a tit-for-tat form of legislating that would completely delegitimize whatever legitimacy the government has left.
Note, the legislature is weird. It meets every other year, is basically a second job. Not sure Cali's professionalization of politics is better, but something has to give.
IIRC, biennial sessions used to be extremely common.
Why would you think that? It's not true.
https://www.ncsl.org/research/fiscal-policy/state-experience...
> One reason for the change was the resurgence of state legislative power in the middle of the 20th century. Legislatures’ growing role in state government can be measured by the shift from biennial to annual legislative sessions. In 1940 only four state legislatures held annual sessions—and Alabama's legislature met only once every four years. In 2011, only four states still have biennial sessions—Montana, Nevada, North Dakota and Texas. Two changes came recently: Arkansas with its first annual session in 2009, and Oregon with its first in 2011.
In 1940, 34 states had populations of 1 million+ and only one state had a population of less than 100k: https://en.wikipedia.org/wiki/List_of_U.S._states_and_territ...
IANAL, but this is how I understand it. The supreme court does not strike down laws in a preliminary injunction, it just prevents the attorney-general or other applicable officials from enforcing it. This law is written so that the attorney general has no part in enforcing the law, so the supreme court can't do a preliminary injunction. It can only strike down the law once somebody tries to use the law and it bubbles its way up the court system.
But of course if everybody is too afraid to break the law, the law has effect without ever being applied.
The best suggestion I heard on how to get rid of it would be to have Massachusetts ban handguns using the same loophole. Somehow I think that this stacked court will come to its senses when it is the 2nd amendment being threatened rather than the 14th.
In this case totally _unrelated_ parties can sue, which seems entirely different.
They are very good at making laws to do what they want (in this case, leverage precdent to ensure that that wfeffoets to block the law before it went into effect did not succeed, maximizing the chilling effect on abortion provision).
> That the Supreme Court basically rubber stamped it is absolutely insane.
The Supreme Court did not rule on the legality of the law (either the abortion restriction or the enforcement mechanism), it only validated the Texas Legislature's attempt to avoid a pre-implementation block against the law. While this enables the chilling effect of the law, it does not validate the substance of the law.
> That the Supreme Court basically rubber stamped it is absolutely insane.
If you want an outcome-oriented reasoning explanation, I’d say the majority wanted to set back the availability of abortion without overturning row; indeed, while likely still upholding it once a case reaches it through the slow path it has required.
Individuals shaming other individuals for "expressing opinions" are not "deputized," since there's no official act. We can talk on and on about whether it's it's good or not, but it's nowhere near as dangerous as states end-running civil liberties by appointing private citizens to do their dirty work.
I'm finding the sneering at "keyboard warriors" really amusing here. How is both the creation of this website, or the anonymous tips themselves anything but "keyboard warrioring"?
If the information collected is public, why is this a not equivalent to other politically motivated data collection? (Or, is the information collected not public?)
There are sites that collect, collate, cross reference and publish individuals' OSINT repeatedly on various political topics. (voting records, financial contributions, gun ownership, financials, etc.)
It's not public. The site was soliciting PII "tips" about abortions. Ostensibly someone might tweet out their address, phone number, name, and having an illegal abortion, in which case it would be public. But in this case, the vast majority of tips aren't going to be public.
The difference with most OSINT stuff is that the information is public in some way or valuable to the public.
Categorically, the site would actually be violating many privacy laws in many states, including things like GDPR. It's definitely a cross-border legal minefield anyways, so it makes a lot of sense why it would be against the terms of service to operate a site specifically to test these boundaries. Sure, it may be a Texas law, but where are the servers? Where are the people submitting the information? Where are the people currently located with information being submitted about? Etc.
This whole thing seems absolutely nuts.
https://www.google.com/search?q=tip+line+contact+form+-%22po...
Sometimes I wonder if the US government should offer some kind of basic web hosting to citizens to guarantee this fundamental right.
You might believe these providers looked through their ToS in search for a reason but I hope you agree with me that there is a difference between freedom of expression and data collection.
The Internet is the public square these days. Imagine if your town's public spaces were all owned by private businesses and you couldn't use them if those private businesses didn't like your message, skin color, gender, ethnicity, religion, or face. That's what I'm afraid of: The enclosure and destruction of the only place modern people have to be heard.
I'm not proposing a solution. There won't be a very easy solution.
It's called the mall and that is basically the rule. You can be asked to leave for no reason at all or be hit with a trespassing charge. A public square is actually public, owned by the public, occupied by the public.
That depends on the state:
https://en.wikipedia.org/wiki/Pruneyard_Shopping_Center_v._R...
Depends on the state:
https://en.wikipedia.org/wiki/Pruneyard_Shopping_Center_v._R...
> A state can prohibit the private owner of a shopping center from using state trespass law to exclude peaceful expressive activity in the open areas of the shopping center.
[snip]
> This holding was possible because California's constitution contains an affirmative right of free speech which has been liberally construed by the Supreme Court of California, while the federal constitution's First Amendment contains only a negative command to Congress to not abridge the freedom of speech. This distinction was significant because the U.S. Supreme Court had already held that under the federal First Amendment, there was no implied right of free speech within a private shopping center.
However, there's further limits to what a private company can do to free speech:
https://en.wikipedia.org/wiki/Marsh_v._Alabama
> Marsh v. Alabama, 326 U.S. 501 (1946), was a case decided by the US Supreme Court, which ruled that a state trespassing statute could not be used to prevent the distribution of religious materials on a town's sidewalk even though the sidewalk was part of a privately-owned company town.
[snip]
> In its conclusion, the Court stated that it was essentially weighing the rights of property owners against the rights of citizens to enjoy freedom of press and religion. The Court noted that the rights of citizens under the Bill of Rights occupy a preferred position. Accordingly, the Court held that the property rights of a private entity are not sufficient to justify the restriction of a community of citizens' fundamental rights and liberties.
E.g., https://www.brookings.edu/blog/techtank/2016/11/07/the-inter...
Edit: Actually, with Tor the static IP should be unnecessary. All you need is a computer and an Internet connection.
I'm starting to think that can't be counted on as a viable option. It's one thing to deny someone access to a particular platform (e.g. Facebook), it's quite another to deny access to basic infrastructure services (e.g. DNS) for something that isn't actually illegal. The former should not utility-like access rules, but the latter probably should.
Practically speaking, this means the government cannot penalize you for what you say. Aside from the fact that what this website is doing is not really speech (it is acting as a data controller), they aren't being penalized by the government, but by the hosting providers.
There is no violation of first amendment rights here. Just the (mistaken) nebulous concept of "Free Speech".
Personally I don’t have more than a nebulous idea of what I think the shape of free speech ought to be: {fire in a crowded theatre, parasite medicine during a viral pandemic, homeopathic cancer remedies in general} seem like harmful things to allow, but the reason society (collectively rather than just the individuals within it) should allow and encourage free speech is to find the stuff where we’re all incorrectly confident what is and isn’t true. It combats groupthink.
Likewise, who should that freedom bind? Just the government, nobody else? That’s great where communication is mediated by public-owned forums, public-owned post, and public-owned telephone networks, but most communication is now mediated my private companies.
Compelling all private companies to be content-neutral in the same way as the government? I don’t see the downsides, but it is a radical change and I am a very long way from any form of law let alone constitutional.
But the point is, this is about what isn’t, not what is.
But it has never guaranteed that you'd have a platform from which to say those things... which is the same guarantee you get from Facebook or anywhere else.
Goverment: no guarantee of a place to speak, cannot put you in jail because of the First Amendment.
Facebook: no quarantee of a place to speak, cannot put you in jail because they're not the government.
Also, it's unclear what legal mechanism could even be put in place to prevent companies from banning and censoring. And it's fraught with problems because you're trying to guarantee a platform, something the First Amendment never intended. Are companies allowed to delete comments? What if they're old comments? Do you have to keep them forever? Who pays for that? Can you delete porn? The First Amendment allows you to say "f--k" over and over and over as long as you're not threatening. Can you imagine people on, say, a religious board posting that over and over? And the organization wasn't allowed to censor it?
It's a massive can of worms.
Finally, on my blog I want the freedom to delete any comments for any reason or for no reason.
Here is a deliberately hyperbolic scenario to illustrate the problem:
If a future government sold all their land to private interests who have opinions about what can and cannot be said, then undesirable people have nowhere to stand while doing the speaking, and those private entities can punish those they don’t like thanks to trespass laws.
This feels like it would de-facto remove freedom of speech even if the government itself passed no new laws.
> It's a massive can of worms.
Agreed 100%, that’s the point of my disclaimers about not knowing enough to have strong, well-defined opinions, nor having relevant skills, both near the start and end of my previous comment.
The deliberately hyperbolic scenario which results from what's being proposed here - that platforms be forced to publish all legal content regardless of their intent - is that governments declare all websites to be platforms, and thus governments directly control all online communication and publishing, and then simply declare any speech they dislike to be illegal.
In essence, what is being argued is that in order to protect free speech we cannot trust private citizens or any communities they form to exercise freedom of association. Yet the same community that considers everything else that governments do a violation of their fundamental civil liberties and a naked and obvious pretext towards rounding up dissidents for the gulags seems to implicitly trust the same governments to act as fair and impartial arbiters of online speech, to the point that they consider giving up what were (until some point in 2016) considered essential liberties to be a necessity.
If the scenario where governments cede all of their authority and property to private interests you mentioned earlier is reasonable enough to be actionable, then this scenario which at least describes things that governments have historically actually done, should be even more actionable.
Yet, given the choice of Facebook not having secret police, and it being possible to simply create other networks on the open internet if you disagree with Facebook's terms, and Facebook having secret police, and the creation or moderation of any new network being directly overseen by governments, and terms of service being enforced by the state's monopoly on violence, people would rather Facebook have secret police.
The flipside would be people having the right to protest on your private property whenever they felt like it.
Or, back in techland, the right to say whatever they wanted on your blog's comment section.
I hear ya, but it's going to be a massive challenge to come up with a cure that's A) Constitutional and B) not worse than the disease.
There are no fundamental rights being violated here.