The fate of Utah’s get-tough-on-pornography law that requires visitors to adult websites to verify their age may hinge on how a judge interprets a 2021 Supreme Court ruling in a Texas abortion case.
Under the law, which took effect May 3, the parents of minors harmed by online pornography can sue a provider for damages if the website failed to verify the age of all of its visitors. The law leaves it up to the sites to figure out how to do that — be it by uploading a driver license, facial recognition or some other technique.
A group called the Free Speech Coalition, the California-based trade association for the adult film industry, filed the lawsuit on behalf of Utahns — including a writer of erotic fiction, an attorney who represents sexually oriented businesses and an online sexual education platform. They contend the state’s age verification law, which took effect May 3, infringes on their constitutional right to free speech and expression.
The coalition has filed a similar suit in Louisiana, which was the first state in the nation to pass a verification law. The trade group says it’s not aware of any lawsuits filed by parents against any websites in either state.
The plaintiffs have asked U.S. District Judge Ted Stewart to press pause on the law while they make their constitutional arguments. A hearing on that request is set for July 17.
But attorneys for the state last week filed a motion asking the judge to dismiss the lawsuit. They argue that the defendants named in the suit — Department of Public Safety Commissioner Jess Anderson and Attorney General Sean Reyes — aren’t the ones responsible for enforcing the law. Instead, the Legislature gave the enforcement mechanism to parents through a “private right of action” to sue for damages in state court.
If Anderson and Reyes aren’t responsible for enforcing the law on behalf of the state, they aren’t restricting speech and therefore there is no “case or controversy” for the courts to review.
That’s where the Texas abortion ruling comes in.
In 2021 — before the Supreme Court overturned Roe v. Wade — Texas passed a fetal heartbeat act that gave residents the ability to sue anyone who provides or facilitates an abortion after six weeks. Whole Women’s Health, a Texas provider, filed a preemptive lawsuit against numerous elected officeholders and court officials seeking to block the law from taking effect.
The case was fast-tracked to the Supreme Court, which ruled that the plaintiffs could not sue the court officers or the Texas attorney general, because they were not responsible for enforcing the law. The case against the state licensing officials, who would be required to take action against abortion providers that are sued and lose in court, could go forward.
The issue was sent back to the Texas Supreme Court, which dismissed the suit against the licensing officials because, the justices said, they were not the ones who enforced the law. Several providers in Texas have been sued since and are challenging the constitutionality of the law.
Using the same logic, attorneys for Utah argue the case against Reyes and Anderson should be thrown out. If the plaintiffs want to argue the law is unconstitutional or illegally targets adult content, they can make that case if they are sued by parents in state court.
In a response brief, also filed last week, the Free Speech Coalition attorneys say the issue isn’t so clear cut. The Legislature has required age verification, but Utah’s driver license system, administered by Anderson and the Department of Public Safety, isn’t compatible with digital verification systems, they contend.
Letting states essentially deputize private citizens to enforce state laws through civil lawsuits, the attorneys contend, opens the door for legislatures to enact any number of restrictions on constitutionally protected rights and avoid judicial review. As an example, they point to a California law that grants a private right of action to individuals to sue anyone who manufactures, sells or owns an assault weapon in the state.
The usual disclaimer here: I’m not an attorney, so where it goes from here is mostly conjecture on my part. But it seems likely that the plaintiffs don’t get their injunction on July 17 and the state prevails in having the case tossed, mostly because they’ve given Judge Stewart an easy way to sidestep the complex constitutional issues.
Pornhub, the busiest pornography platform in the United States, blocked all access to its site from Utah addresses when the law took effect in May, but other porn websites have not. So eventually we’ll see a spate of lawsuits by parents against a host of companies, probably against everything from Victoria’s Secret to hardcore sites.
If you don’t believe me, consider the recent lawsuit filed by the parents of a high school student against Alpine School District because the school let him out of class early and he had sex in the parking lot, which they considered a violation of their religious beliefs.
The judge tossed the case, but it demonstrates that parenting is hard and it’s easy to find someone else to blame when things don’t go as planned.
When those porn companies are sued, the constitutional questions — whether the state can regulate the internet, whether it can impose a burden on adult customers, if content-specific laws can withstand free speech claims — will be teed up for the state courts to decide.
At that point, I suspect there’s a good chance the law will be struck down. But those will be arguments for another day.
(Francisco Kjolseth | The Salt Lake Tribune) Robert Gehrke.