U.S. Sides With Utah in Child Protection Registry Case

Michael Hayes
SALT LAKE CITY, Utah — Attorneys for the Justice Department filed a brief in the Utah Child Protection Registry case, siding with state officials and arguing that the statute is neither preempted by the federal Can-Spam Act nor contrary to the 1st Amendment.

The Free Speech Coalition filed a motion in U.S. District Court in Salt Lake City in May seeking preliminary injunction to halt enforcement of the law.

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.

Emailers can pay a private company to "scrub" their lists at a cost of a 1/2 cent for every name on their list, according to the registry’s rules. That company, Unspam Registry Services Inc., is named in the suit.

In a 29-page brief filed before Judge Dale Kimball, who is set to hear arguments Thursday on the FSC’s motion for an injunction and the state’s request to dismiss the trade group’s lawsuit, Justice Department lawyers laid out a two-pronged argument in defense of the statute.

Rebutting the FSC’s argument that enforcement of the state law would overrule Congress’ decision not to implement a “do not email” registry, Justice Department lawyers said in their brief that the Can-Spam “preemption provision applies only to state laws that expressly regulate the use of electronic mail to send commercial message.”

According to the Justice Department brief, Can-Spam does not preempt the Utah law’s ability to prohibit sending emails that “contain material that is harmful to minors.”

Addressing the FSC’s argument that the law imposes an impermissible prior restraint on free speech, Justice Department lawyers argued that Utah has a right to prohibit the sale of material to minors, when it is deemed “harmful to minors,” even though the same content would not be ruled as obscene as to adult.

Government attorneys also argued that the 1st Amendment does not “protect a speaker’s right to send unwanted material into the home of another.”

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

To read the brief, click here.