FSC Denied Injunction in Utah Child Protection Registry Case

Michael Hayes
SALT LAKE CITY — U.S. District Judge Dale Kimball has refused to issue a temporary injunction that would prohibit the Utah Child Protection Registry site from operating before his court can hear the case in full.

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, Unspam Registry Services Inc., to "scrub" their lists at a cost of a 1/2 cent for every name $5 per 1,000 addresses, according to the registry’s rules.

In a 33-page ruling, Kimball said the FSC failed to meet its burden of “clearly and unequivocally establishing each element for the issuance of a preliminary injunction.”

In part, Kimball found that the FSC’s 1st Amendment and Commerce Clause-based arguments did not have a substantial likelihood of success. Under the law, those seeking preliminary injunctive relief must demonstrate that they have a substantial likelihood of success based on the merits of their case.

Adult entertainment attorney Reed Lee told XBIZ rulings on preliminary injunctions don’t always mirror final rulings.

“The judge has to make a prediction based on what he thinks the final outcome will be, but he has to weigh that against the potential harm to the parties,” Lee said. “In this case, I think the judge has simply overlooked some of the points we made.”

FSC Executive Director Diane Duke said the group was weighing its options.

“FSC is not content to let the CPR decision stand,” Duke said. “We have a number of avenues to consider, up to and including a victory in court.”

Duke added that she believes a recent federal court decision declaring the Child Online Protection Act (COPA) unconstitutional helps to buttress the FSC’s case against the Utah Child Protection Registry.

According to Lee, the case now moves into the discovery phase where both sides will work to develop a record of facts. Lee said he believes there is a good chance both sides can agree on the facts, which means that the Judge will simply need to rule on the law.

In the meantime, Lee said adult companies concerned that they may send an email in violation of the Utah law would have to operate with that risk in mind without an injunction.

Although Kimball did deny the FSC’s request for an injunction, he did rule in favor of the trade group by denying the state’s motion to dismiss. Attorneys for Utah had unsuccessfully tried to persuade Kimball that the FSC lacked standing to challenge the law on behalf of the adult entertainment industry.

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