Utah Attorney General Rebuffs FSC Lawsuit
The Attorney General’s Office filed a motion to dismiss a complaint filed Nov. 16 in federal court by the Free Speech Coalition, which filed a federal suit against the state last month, claiming that the Act is unconstitutional. Shurtleff said that the state government will continue to “vigorously defend the fundamental right of parents to keep porn out of their homes.”
"This lawsuit shows the pornographers true colors,” Shurtleff said. “They claim a ‘right’ to market porn to adults, but by challenging our Child Protection Registry, they have proven their real intent to force smut on our children in our homes and schools.”
But FSC Communications Director Tom Hymes told XBiz the FSC expected the state’s motion to dismiss and feels it “does not substantially respond to any of our arguments.” He added that the FSC will file an amended complaint against the motion to dismiss, most likely in January 2006.
“Shame on [Shurtleff] for making baseless and erroneous statements designed to score political points,” Hymes said.
Utah’s Child Protection Registry went into effect on July 15. The law established a “Do Not Email” registry containing email addresses that belong to, or can be accessed by, Utah minors. It also criminalized the sending of prohibited email to any email address listed in the registry for more than 30 days.
More than 200 senders of adult content have already registered to comply with Utah’s law, by removing registered addresses.
But the FSC’s suit, filed in U.S. District Court in Salt Lake City, says the Act violates the right of free expression, treats e-marketers differently than other marketers and potentially prohibits interstate communications outside the state, among other claims.
Since July, state reports show thousands of parents have taken advantage of the Child Protection Registry, as well as scores of public and private school, which have placed school domains on the registry to keep adult advertisements out of Utah’s classrooms. The Child Protection Registry service is free to parents and schools and costs $0.005 per email address for adult industry marketers to ensure that inappropriate messages are not sent to minors.
However, Hymes said that the cost of “scrubbing” email lists against the registry database on a monthly basis could be prohibitive, leading to a chilling effect on legitimate Internet marketing.
Hymes also said the law is flawed in a number of ways, most significantly that it conflicts directly with the federal Can-Spam Act, which was enacted by Congress in 2003 to regulate and standardize email marketing in the U.S. In ratifying Can-Spam, Congress considered the creation of a national “Do Not Email” list, and directed the Federal Trade Commission to prepare a plan for implementation.