Digital laws affected by Dobbs decision
Prosecutors and investigators may weaponize abortion restrictions to limit speech
Since the Supreme Court threw out the abortion precedent last year, law professors across the country have speculated how regulations on anything ranging from pharmaceuticals to online communication would play out.
Free speech and First Amendment concerns are among the foremost on people’s minds. Eric Goldman, law professor and co-director of the High Tech Law Institute at Santa Clara University, has focused on how it will affect the digital sphere. He said that we are at the frontier of a new culture war.
Goldman said the Supreme Court threw open the door for additional forms of regulation. As collateral damage, that implicates speech about abortion.
“By creating more potential criminal liability for abortion, all the conversations associated with abortion get swept into a new legal status,” Goldman said.
Business Insider reports that law enforcement has sought digital data on abortion seekers. They want to build cases against women who want abortions or medications that cause pregnancies to end.
District attorneys, who are elected, might want to grandstand on the issue and make a case for voters by being a hardliner on abortion. But that doesn’t mean conservative appointees to federal positions won’t prosecute either.
“What we've seen is that there's a lot of different stakeholders who are weaponizing the legal system as part of building their own individual brand,” Goldman said.
It remains to be seen how state and federal lawmakers protect speech about abortions.
“It's not clear that any existing First Amendment precedents are going to apply as they used to. If that's the case, it could be a double whammy,” Goldman said.
The first whammy will be the Supreme Court taking away rights. The second will be the inability to talk about it.
“A conversation helping somebody get out of illegal abortion becomes a criminal conspiracy,” Goldman said. “Whereas if abortion were legal, that would actually just be fully protected speech.”
Tech companies may be forced to divulge data because prosecutors will subpoena it. To resist that, those communication providers will have to go to court to quash any attempt to secure sensitive information.
“Many internet services are reluctant to take those steps because of the fact that it's just costly to them,” Goldman said. “And they don't have huge stakes in the question.”