Roe Overturned; Is Section 230 Next?

WASHINGTON — The U.S. Supreme Court has eliminated the federal constitutional right to abortion set out by the Roe v. Wade decision. After weeks of controversy due to Justice Samuel Alito’s opinion being leaked in May, the conservative high court issued a majority ruling killing over 50 years of what was considered by most legal scholars as settled law. As CNN put it, “a historically unpopular Supreme Court made a historically unpopular decision.”

Laws protecting free expression online are now, too, more at risk. Section 230 of the Communications Decency Act of 1996 and its safe harbor provisions protect web platforms from the liability of a third-party user who violates the terms of a platform, or federal laws. Groups who are currently celebrating the overturning of the national right to abortion maintain that Section 230 supposedly protects criminals from exploiting children and adults in non-consensual sexual settings.

However, the law does no such thing. It encourages platforms of all sizes and types to conduct self-regulation and to cooperate with law enforcement and regulatory agencies when the cases in question are verified and justified to encourage the shielding of liability. Established and affirmed by Supreme Court decisions several times over, courts have consistently ruled that Section 230 is constitutional.

In other words, like Roe, Section 230 is considered settled law. Very rarely have the courts violated standing precedent in litigation dealing with Section 230. But, this high court has proven it’s willing to buck decades of precedent to advance agendas and rule on a singular case that would otherwise be dropped.

If Section 230 to any degree is restricted or repealed, we will see mass censorship. SESTA-FOSTA, a law supposedly designed to target sex trafficking online by carving out exception to Section 230 was signed into law by former President Donald Trump, has had this effect.  SESTA-FOSTA was intended to encourage federal prosecutors to seek civil and criminal penalties against platforms that enable what the law defines as sex trafficking and/or human trafficking. But the law is overly broad and has actually caused more harm than good, expanding the censorship of consensual sexual materials online, limiting the availability of LGBTQ informational resources, and sending sex workers en masse from the safety and privacy of the internet back to the potential harm and violence of the streets.

There is motivation in powerful circles to eliminate safe harbor provisions because of claims of systemic censorship of conservative and more extremist viewpoints on social media and in search engine algorithms — all false claims. Section 230 is a legal protection and right. Under the Ninth Amendment, the federal government “doesn’t own the rights that are not listed in the constitution.” These rights belong to the people, instead. These are unenumerated rights, or rights not written down in the actual constitution but are still protected.

Alito and his colleagues spat in the eye of these protected rights by killing five decades of legal standing. The Fourteenth Amendment, notably, was applied by the court in Roe to extend the right of privacy to encompass a woman’s right to have an abortion procedure, including other elements of reproductive health autonomy and sexual liberties.

Roe was also a crucial decision in helping define the modern penumbra of privacy held across multiple amendments of the constitution. The penumbra of privacy stems from the reasoning that several of the Amendments within the Bill of Rights confer a general right to privacy.

My concerns over Section 230 stem from this line of thinking. Section 230 is necessary to protect speech and encryption. Refer to Riana Pfefferkorn, research scholar at the Stanford Internet Observatory, when she wrote for TechDirt on the topic of encryption and Roe:

“The loss of Roe will unavoidably usher in a new phase of the encryption debate in the U.S. because Roe has been the law of the land throughout the entire time that strong encryption has been generally available.”

“In all the years since 1976, encryption policy discussions about “balancing” privacy rights and criminal enforcement have never had to seriously grapple with what it means for abortion to be a crime rather than a right. That’s about to change.”

Supreme Court Justices portrait by Fred Schilling, from the Collection of the Supreme Court of the United States