Mayday Health v. Rhoden
Issue
In *Mayday Health v. Rhoden*, plaintiffs Mayday Health and attorney Nancy Turbak Berry argue that South Dakota HB 1274 (2026), which criminalizes advertising abortion-related services, violates the First Amendment as applied to a nonprofit's health-information website and to an individual's act of wearing a branded sweatshirt bearing abortion-related information. They further contend the statute's "advertise" prohibition is facially overbroad under the First Amendment and, separately, that federal internet immunity law — 47 U.S.C. § 230 — preempts the statute's application to a website that curates and links to third-party reproductive health content. The case presents the unresolved question of whether § 230's express preemption provision displaces a state abortion-advertising law when enforcement would effectively hold a linking or aggregating website liable as a publisher of content it did not create.
What Happened
On May 29, 2026, plaintiffs filed this initiating complaint in the U.S. District Court for the District of South Dakota, bringing a pre-enforcement challenge under 42 U.S.C. § 1983 against the Governor and Attorney General in their official capacities. The complaint seeks a preliminary and permanent injunction against HB 1274 enforcement and declaratory relief on all four theories. Plaintiffs argue Mayday's website disseminates noncommercial, morally motivated health information entitled to full First Amendment protection, and they cite prior statements by a Southern District of New York judge — made in an earlier Mayday case that was dismissed on abstention grounds without reaching the merits — as persuasive evidence that the speech is protected. Turbak's standing as a plaintiff rests on the State's own prior prosecution theory, which plaintiffs contend establishes a concrete, credible threat that wearing Mayday merchandise could itself trigger criminal liability. On the § 230 theory, plaintiffs characterize Mayday as an interactive computer service provider that links to and aggregates third-party reproductive health content, arguing that HB 1274's enforcement would impose publisher liability for that third-party material in direct conflict with federal law.
Why It Matters
This case asks a federal court to decide, for the first time, whether a state law criminalizing abortion-related advertising can be blocked by the federal internet immunity statute that shields websites from liability for content they link to or host but did not create. If the court accepts the § 230 preemption argument, it could constrain how states regulate reproductive health information online regardless of how those laws are drafted, establishing a template that other platforms and advocacy organizations could invoke against similar statutes nationwide. The case also tests a foundational distinction — whether a nonprofit's health-information website constitutes fully protected noncommercial speech or targetable advertising — with significant consequences for advocacy groups operating under restrictive state abortion laws. Platform-law practitioners will watch the court's treatment of the "treated as publisher or speaker" element closely, as its resolution in this politically charged context could shape the outer boundaries of § 230 immunity well beyond the reproductive health field.
Related Filings
Other proceedings in the same litigation tracked by this monitor.
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