The South Carolina legislature is moving to enact a new law with deeply troubling free speech implications. Following the Jackson Women’s Health Organization v. Dobbs decision overturning Roe, the legislators have sought to criminalize any effort to ”aid, abet or conspire with someone” to obtain an abortion. That apparently includes sharing information over the Internet or other communication systems. In my view, the law violates the First Amendment and should be scuttled by the legislature. Otherwise, it would likely be struck down by the courts.
The language below is reminiscent of laws making it illegal to share information on committing suicide. I have long objected to prosecutions for sharing such information as inimical to free speech.
The free speech concerns are even greater with regard to the South Carolina law. Abortion is a protected right in many states. Indeed, many continue to believe that this is a protected right under the Constitution.
The law criminalizes sharing information on “the means to obtain an abortion, knowing that the information will be used, or is reasonably likely to be used, for an abortion.” It is an unconstitutionally broad provision. Even the federal government and members of Congress would be in violation since it is actively assisting those seeking abortion services.
Of course, it is easy to introduce legislation but it is important to flag such excessive laws before they are replicated in other states. Indeed, the provision was reportedly based on model legislation drafted by the National Right to Life Committee (NRLC). Jim Bopp, the NRLC’s general counsel, reportedly wrote a memo noting that the model legislation seeks to use a type of organized crime model to deal with such activities: “The whole criminal enterprise needs to be dealt with to effectively prevent criminal activity.”
The analogy to organized crime will not sustain such a law. As noted above, this is a lawful procedure in many states and the criminalized information would include core political and religious speech under the First Amendment.
The law also makes it unlawful for a person “to knowingly or intentionally receive any proceeds directly or indirectly derived from a pattern of prohibited abortion activity.” That could include a wide array of religious, journalistic, and public interest organizations.
Presumably, tech companies themselves would be protected under Section 230 of the Communication Decency Act (47 U.S.C. § 230). However, it would make it a crime for anyone, including journalists, public interest groups, politicians, and advocates from sharing basic information on abortion services for women in states like South Carolina.
Pro-life states need to be careful not to replicate the record of anti-gun states like New York, which have passed a series of ill-considered laws that resulted in major court losses. There is a tendency in such moments to follow Oscar Wilde’s rule that the only way to be rid of temptation is to yield to it. However, overreach can result in creating new and limiting precedent. The pro-life community needs to switch from years of being on the offensive to being on the defense. It needs now to hold the ground gained in Dobbs while pro-choice advocates must now shift to the offense in litigation after years of defending Roe.
South Carolina has moved to lower its ban from the 20th to the 6th week of a pregnancy.
Here is the critical language:
Section 44-41-860. (A) It is unlawful to knowingly or intentionally aid, abet, or conspire with another person to violate the provisions contained in Section 44-41-830. A person who violates this section is guilty of a felony and is subject to the same penalties as provided in Section 44-41-830.
(B) The prohibition against aiding and abetting a violation of Section 44-41-830 includes, but is not limited to knowingly and intentionally:
(1) 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 will be used, or is reasonably likely to be used, for an abortion;
(2) hosting or maintaining an internet website, providing access to an internet website, 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 abortion, knowing that the information will be used, or is reasonably likely to be used for an abortion;
(3) offering or providing abortion doula services, knowing that the services will be used, or are reasonably likely to be used for an abortion;
(4) providing a referral to an abortion provider, knowing that the referral will result, or is reasonably likely to result, in an abortion; and
(5) providing a referral to an abortion provider and receiving monetary remuneration, or other compensation, from an abortion provider for the referral.
Turley tweeted:
“Higher education requires a modicum of tolerance for a diversity of opinion. We can have passionate but respectful debate without seeking to silence those with opposing views.”
The Michigan students did not heckle, did they? They expressed themselves by walking out of the room “peacefully and patriotically.” The students did not silence an opposing view; rather, they simply refused to listen.
Turley needs to be asked whether it is indefensible to walk out on anyone? Consider Trumpist Ted Nugent who in 2016 said about Michael Bloomberg, Charles Schumer, Rahm Emmanuel and other exclusively Jewish leaders:
“Know these punks. They hate freedom, they hate good over evil, they would deny us the basic human right to self defense & to KEEP & BEAR ARMS while many of them have tax paid hired ARMED security! Know them well. Tell every you know how evil they are. Let us raise maximum hell to shut them down!”
After being criticized, Nugent doubled-down:
“Just when you hope that mankind couldn’t possibly get any dumber or more dishonest, superFreaks rise to the occasion. What sort of racist prejudiced (piece of sh*t) could possibly not know that Jews for guncontrol are nazis in disguise? “NEVER AGAIN!” Anyone? Anyone?? (Are you f*cking kidding me?”
Turley rightly expressed his denunciation:
“Putting aside that this rant has become barely intelligible, Nugent’s hateful views are breathtaking. While he has been a darling with some on the political right, this posting exposes him as a true lunatic.”
https://jonathanturley.org/2016/02/10/ted-nugent-unleashes-rabidly-anti-semitic-rant-over-gun-control/
Turley, may students walk out on this Trumpist with your blessing?
The SC proposed “law violates the First Amendment . . .”
Of course it does. That’s because rights are a unity. When government violates one (the right to abortion), then (unless reversed) all rights are eventually violated.
Sam, where did the federal government violate “the right to abortion”, if one exists?
Are women getting abortions today? Yes. Case closed.
Quagmire Restraint
TO LAW OR NOT TO LAW, THAT IS THE QUESTION
Law, like impeachment, is whatever is popular at the time.
_____________________________________________
“the people are nothing but a great beast…
I have learned to hold popular opinion of no value.”
– Alexander Hamilton
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“The first recorded divorce in the American colonies was that of Anne Clarke and her husband Denis Clarke of the Massachusetts Bay Colony on January 5, 1643. The divorce was granted by the Quarter Court of Boston, MA on the grounds that Denis Clarke abandoned his wife to be with another woman.”
– Nottage + Ward – http://www.nottageandward.com/blog/divorce/first-recorded-divorce-us-history-tells-common-tale/
____________________________________________________________________________________________
Secession and divorce were fully legal and constitutional in 1860.
That legality and constitutionality was of no concern to Lincoln.
Of what concern are any laws today?
Lincoln taught America to disobey laws.
America is built on Lincoln’s foundation of illegality and unconstitutionality.
If law mattered not to Lincoln in 1860, what does law and fundamental law matter in the Year of our Lord, 2022?
________________________________________________________________________________________
“If you don’t stand for something, you will fall for anything.”
– Gordon A. Eadie
After 24 hours of fertilization, a zygote in the womb is a very young human being who requires food and shelter which must be provided by its mother.
After arrest, an inmate in jail is a human being who requires food and shelter which must be provided by the police.
Society does not allow its police to murder their arrestees.
Society does not allow its mothers to murder their zygotes/embryos/fetuses/babies.
It is the legal duty of police and the natural duty of women to forfend and board their respective charges.
A State may codify murder as a violation of law and statute.
A State may codify abortion as a violation of law and statute.
Wherever a violation of law exists, it must be a violation of law to facilitate that violation of law.
When in South Carolina, a person must not commit abortion and a person must not facilitate abortion.
Americans in every State enjoy the freedom of speech.
Americans enjoying the freedom of speech would be wise not to commit criminal or civil infractions, such as conspiracy or defamation.
Americans may not weaponize the freedom of speech.
Separation of Cult and State? Where will women perform human rites to relieve voluntary “burdens” for social, redistributive, clinical, political, and fair weather causes? Where will ten year-old girls be rape…rape-raped in darkness?
That said, what’s good for a dead fetus (i.e. technical term of art to socially distance medical staff and abortionists from their patients and victims, respectively), may be good for a live baby.
While democracy dies in darkness, demos-cracy is aborted at the twilight fringe.
Get well soon, Professor Turley. Best wishes for a full recovery.
Jonathan: I hate to go off topic but today Liz Chaney was interviewed on Fox by host Bret Baier. Baier asked Cheney to respond to charges the J.6 Committee was illegitimate because it has shown bias and lack of due process, failed to appoint ranking GOP members, not allowed for cross examination. etc. You echoed these false charges in previous columns on the J. 6 hearings. Cheney demolished these charges by pointing out that it was Kevin McCarthy who rejected a bi-partisan commission and them boycotted the Committee by refusing to appoint any GOP member to the Committee. Facts I pointed out in previous comments. So, are you going to continue to push the false Fox narrative or will you finally admit you got the facts wrong?
Dennis, the Democrats running the Jan 6 Committee blocked the appointment of the Republicans that the minority chose. This had never been done before. The majority does not get to control whom the minority appoints. Rather than allow Democrats such control as to prevent whom they will anted, Republicans withdrew.
Karen S.
Dang you for bringing the facts to the topic!
However shall the low information, no information voters ever get educated to the facts?
McCarthy chose 2 literal clowns: Jim Jordan of Ohio and Jim Banks of Indiana, both of whom would turn the proceedings into a shouting match and dog and pony show. Jordan was directly involved in the insurrection, so there’s no way he could be on the committee, somthing McCarthy knew, but he was trying to deliberately turn the proceedings into a shouting match as a deflection away from the seriousness of the first domestic attack on the US Capitol in history–one that was instigated bya sitting President. Pelosi vetoed these two, but not the other three, so being the petuland child he is. McCarthy pulled the other 3 nominees. There’s no reason why he couldn’t have named 2 substitutes, other than the fact that he was still trying to protect Trump and probably himself. There are still 2 Republicans, but, according to Fox and Trump, they don’t count because they wouldn’t make light of the seriousness of the insurrection or try to defend Trump. Fox, and Turley, one of its employees, has tried to turn the J6 committee into some partisan attack, but other than a GA election worker and her aged mother (whom Trump called “hustlers” and who have required protection for their safety), a Capitol Police Officer and journalist embedded with the Oath Keepers, all other witnesses were Trump appointees, incluidng Bill Barr, Pat Cipollone, and members of White House staff. And, Karen S., you have previously insisted that Jan 6 was just a “protest that got out of control” by “a few yahoos” –you might want to review what the journalist embedded with the Oath Keepers had to say about their reconaissance of the Capitol the day before the attack, their plan for how to breach security, and their battle equipment and weapons.
Natacha:
The majority doesn’t get to control whom the minority appoints, get it?
Democrats putting RINOs on their committee does not make it bipartisan. It makes it illegitimate.
What makes Liz Cheney and Adam Kinzinger “RINOS”? The fact that they are American patriots first and Republicans second? Being a Republican DOES NOT equate to supporting a chronic habitual liar who cheated his way into office and who was voted out by the American people. Are they “RINOS” because they won’t cover up for the one you worship and adore, and that they are repulsed by the fact that he planned, even before the Election, to claim his nonexistent “lanslide victory” would be stolen because he knew he would lose? See the Bannon audio from October 31, 2020 for proof that Trump planned all along to claim he was cheated. The fact that Cheney and Kinzinger refuse to support the most-unfit person ever to occupy the White House makes them PATRIOTS, something you don’t understand at all because you are a Fox disciple. As Liz Cheney pointed out, the worst thing that Trump did was spread the Big Lie and incite the insurrection in the name of patriotism.
And where did you get the idea that Nancy Pelosi didn’t “get to control” who was on the J 6 committee? Did Hillary Clinton have a say-so as to who sat on the committee that held the Benghazi hearings conducted by Republicans? And, BTW, she testified for over 11 hours, instead of refusing to comply with subpoenas, like some of Trump’s cronies have done.
Karen says:
“Democrats putting RINOs on their committee does not make it bipartisan. It makes it illegitimate.”
Turley does not agree that the committee is “illegitimate.” While he laments that there is no cross-examination of the witnesses, he has stated repeatedly that he values the transparency afforded by the investigation. Turley has conceded that the committee has revealed “breathtakingly” damning evidence.
In retrospect, I wish both Jim’s had remained on the committee. I would have enjoyed watching them trying to malign the reputation and impeach the credibility of the Trumpist witnesses. I can well imagine the witnesses protesting vociferously and indignantly the accusations that they were always RINO’s or suffer from TDS!! These accusations would have backfired spectacularly and serve only to reinforce the fact that the witnesses were telling the truth in spite of the attacks of Trumpists.
RE:”McCarthy chose 2 literal clowns..” Still waiting on the day Natacha gifts us with an intelligently constructed narrative instead of a perjorative ridden diatribe. Tiresome to say the least. .
These two headlines are certainly not Fox News and most assuredly not even GOP leaning. Took two minutes to look up.
You seem to want Turley’s input on something that actually occurred that you says didn’t occur. Weird. Kinda sounds like Trump and election fraud or Schiff and Russian collusion.
NPR, July 21, 2021: Pelosi Rejects 2 GOP Nominees For The Jan. 6 Panel, Citing The Integrity Of The Probe
Axios, July 22, 2021: Pelosi says she did not reject Jordan and Banks over Electoral College objections (but the article quotes Pelosi as rejecting McCarthy selections for other reasons.
False
Jonathan: It’s good to see you now see the logical and unintended consequences from your support of the Dobbs decision. Once the right-wing Catholic cabal on the SC decided that states should have the power to decide what 1st Amendment rights to grant women it opened the pandora box. But the assault on women’s basic 1st Amendment rights is not confined confined to S. Carolina. Texas now permits bounty hunters to sue anyone who seeks to enable an abortion–even in a state that permits the procedure. GOP legislators in Texas have even threatened a law firm with prosecution and loss of law licenses because they have offered to pay the expenses of employees seeking an abortion. This is a direct attack on the “free speech” rights of lawyers in Texas. But I didn’t see you ring the alarm bell over this attack on free expression–even one involving fellow lawyers.
And anti-abortion groups are promoting model legislation in other states similar to the one in S. Carolina. If abortion is the “murder” of an unborn child then it makes logical sense that anyone who helps a woman obtain an abortion is complicit in that “murder”. I mean “murder” is not protected under the 1st Amendment. Right? I shudder to think what Thomas/Alito would do with a case challenging the S. Carolina law or one similar. Both think abortion is “murder”. What is to prevent them from ruling a regulation designed tp prevent “murder” is “reasonable” on its face? Farfetched? If the Thomas/Alito religious cabal can arbitrarily take away one fundamental right what is to prevent them from taking away others? I can hear them say: “We hold here that S. Carolina’s law is not an unreasonable restriction on 1st Amendment rights. But no one should read this decision to mean other 1st Amendment rights are are similarly restricted”. Sure, you can take that to the bank!
By endorsing the Dobbs decision, a direct attack on free expression, you have shown your true colors. You are not a “free speech absolutist”. And it’s not just Dobbs. Around the country, primarily in the South, books are being banned from school libraries. That’s also an attack on “free speech”. If you were truly consistent you would have opposed Dobbs, written in opposition to book banning and raised a hue and cry over attempts to intimidate the “free speech” rights of law firms in Texas. Consistency may be the hobgoblin of small minds but you have made it into an art form!
Dennis you are stretching the truth in a few spots, outright falsehoods in others, and your pearl clutching, over the top rhetoric throughout your rant can mean only one thing: Time to log off, go outside, touch the grass or perhaps pet a puppy.
Ruven: Your response is so typical of Trumpsters: vague accusations of lying, without specifying exactly WHAT you claim is a lie, accusations of exaggeration, ranting, and general insults. You really can’t come up with any substantive response to Dennis’s very thoughtful and well-written post, so you resort to the same thing Trump and alt-right media do: call people you disagree with liars, exaggeraters, or engaging in raw rhetoric. This is why we can’t have civil discourses in our society.
RE:”Ruven: Your response is so typical of Trumpsters:…” You expound with the brush of a housepainter. Be more like Monet.
Makes you wonder why radar detectors are legal in South Carolina.
Pushing and acceptance of far left crazies has now bred far right crazies. Dare I say Presidential dictate “Climate Emergency” or W.H.O. “Monkey Pox emergency”? The pendulum swings both ways sooner or later.
This is such an easy call. As adamant as I am on the pro life side, I cannot jettison the Constitution.
What are these people thinking?
It’s as if they’re trying to get thrown out of power
It will not hold up to free speech standards in court. The most restrictive laws are in reaction to the most permissive ones. People were stirred to action when there was talk in VA and NY about making newborns born alive after third trimester abortion comfortable while the mother decided if she still wanted him dead.
However, such laws still have to be Constitutional, and if they do not reflect the will of the people, they will change.
The overwhelming number of people polled do not support criminalizing women for getting abortions, or those who discuss how to leave the state to get one. People are also free to travel throughout the country.
There are NO laws or even “talk of” laws in either VA, NY or anywhere else that would allow a live-born child to be killed after birth at the whim of its mother. In the absence of lethal congenital anomalies or prematurity incompatible with life, health care providers must provide care for a live-born child or face criminal or civil liability. I’d really like to understand WHY you belive such lies. I know nurses who have worked in labor and delivery and have had to experience the gut-wrenching situation when an extremely premature infant struggles to try to breathe with undeveloped lungs or a defective heart that cannot sustain life, knowing that if you give it oxygen, its immature blood vessels will rupture, hastening its inevitable death, and also knowing there’s nothing that can be done to save it.
I’m still wating for one of you Trump fans to spin away your hero waiting for 187 minutes while he watched the insurrection at the Capitol unfold on Fox and ignored calls from Fox news personalities, his children and advisors to put a stop to it.
Straight from VA Governor Northam’s own mouth, in regards to third trimester babies born alive after an abortion attempt:
https://youtu.be/Vx5QKTY-3MY
RE:”I’m still wating for one of you Trump fans to spin away your hero…” “I recall video, neatly hidden away now, of Capitol Police opening the gates and waving people through.
Maybe states across the U.S. should outlaw the sharing of information about South Carolina’s fireworks stores.