Motion Filed to Dismiss FSC Suit Over Utah Registry

Rhett Pardon
SALT LAKE CITY, Utah — The company handling Utah’s Child Protection Registry filed a motion in federal court late Monday seeking to dismiss the Free Speech Coalition’s case that attempts to put a halt to the new law.

Unspam Registry Services Inc. claims that the FSC and its members have not demonstrated that they send emails that are subject to or that they may suffer the penalties of the Child Protection Registry Act, according to court documents.

“FSC has not alleged concrete and particularized injury to its members sufficient to challenge some of the CPR Act’s provisions,” the motion said.

The defendant further claims that “[b]ecause FSC has alleged no injury in fact to itself, it has no standing to sue on its own behalf.”

Utah’s registry allows parents and others to register email addresses to which minors have “access,” and then prohibits emails from being sent from anywhere in the world to those addresses that advertise “harmful matter” or products or services minors cannot purchase. The law went into effect May 1.

Emailers can pay Unspam Registry to “scrub” their lists at a cost of 1/2 cent for every name on their list, according to the registry’s rules.

Unspam Registry, which was joined in the motion by Utah Attorney General Mark Shurtleff and Consumer Protection Director Kevin V. Olsen, are asking that the FSC’s motion for preliminary injunction and declaratory relief be dismissed.

Attorney Gregory A. Piccionelli, who represents the FSC in the case, was unavailable for comment to XBIZ at post time.

Earlier this month, the FSC contended in a 45-page motion to the U.S. District Court in Salt Lake City that the registry is preempted by the federal Can-Spam Act and that it violates the Commerce Clause of the U.S. Constitution, the 1st Amendment of the Constitution, and Article I, Section 15, of the Utah Constitution.

“The enforcement of CPR would effectively overrule Congress’ decision not to implement a ‘do not email’ registry,” the court filing said. “The public interest strongly favors upholding such explicit congressional intent.”

The FSC also said in the suit that the registry constitutes an impermissible prior restraint, violates the expressive privacy of members and imposes an unconstitutional burden on protected expression, among other arguments.

FSC attorneys still are seeking preliminary injunction enjoining Shurtleff from enforcing any of the provisions contained in the act.

The FSC’s motion is supported by the American Advertising Federation, the American Association of Advertising Agencies, the Association of National Advertisers Inc., the Email Service Provider Coalition, Electronic Frontier Foundation and the Center for Democracy and Technology.

The case is Free Speech Coalition vs. Shurtleff, No. 2:05-cv-00949.