Challenge to Utah Law Loses Plaintiffs

Q Boyer
SALT LAKE CITY — A legal challenge to the Utah Harmful to Minors Act lost close to half of its plaintiffs last week, following a ruling by U.S. District Court Judge Dee Benson in which he found that the plaintiffs failed to demonstrate that they had standing to challenge the law.

The plaintiffs in the case argued that portions of the Harmful to Minors act, as amended by the Utah state Legislature in 2005, violate both the 1st Amendment and the Commerce Clause of the U.S. Constitution.

Under §76-10-1206 of the statute, one of the portions challenged in the lawsuit, a person is considered to be guilty of dealing in material harmful to minors when “knowing that a person is a minor, or having negligently failed to determine the proper age of a minor, the person … intentionally distributes or offers to distribute, exhibits or offers to exhibit to a minor any material harmful to minors.”

While the statute provides certain exemptions for ISPs and hosting services, there are caveats within the law stating that the exemption only applies so long as the hosting company of ISP “does not intentionally engage, aid or abet in the distribution of the pornographic material” and “does not knowingly receive funds from or through a person who distributes the pornographic material in exchange for permitting the person to distribute, store, or cache the pornographic material.”

Prior to the court’s ruling last week, plaintiffs included two Utah-based ISPs, several Utah bookstores, Salt Lake City-based artist Nathan Florence, former candidate for Utah Attorney General W. Andrew McCullough, the Utah Progressive Network Fund (UPNF), the American Civil Liberties Union of Utah, the Sexual Health Network, the Comic Book Legal Defense Fund, the Association of American Publishers, the Publisher’s Marketing Association, the Freedom to Read Foundation and the American Booksellers Foundation for Free Expression.

After reviewing the arguments of the various plaintiffs, Benson held that the two Utah bookstores — The King’s English and Sam Weller’s Zion Bookstore — McCullough, IPNS of Utah, and the UPNF all had failed to demonstrate standing to challenge the statute.

The court also held that all of the plaintiffs lacked standing to challenge two sections of the statute — §76-10-1231 and §76-10-1205 — and dismissed all claims pertaining to those two sections from the case.

The ruling was a partial victory for Utah Attorney General Mark Shurtleff, who had requested that the entire action be dismissed, asserting that all of the plaintiffs lacked standing to challenge the statute; the court disagreed.

“Defendants argue that the Utah Harmful to Minors Act only applies to Utah-based content providers, and thus, for that reason alone, all out-of-state content providers lack standing to challenge the statute,” Benson wrote in the decision. "But there is nothing in §76-10-1206 which limits its application to in-state content providers. By its own terms, §76-10-1206 applies to any ‘person,’ with no geographic or other limit.”

Although the court could change its opinion based on further arguments and facts raised in the case, Benson held that “at the pleading stage, The Sexual Health Network, CBLDF, PMA, AAP, FTRF, and ABFFE have all demonstrated a credible and well-founded fear of prosecution under the act and thus all have standing to challenge.”

In the lawsuit, plaintiffs asserted that the Utah statute constitutes a “broadly restrictive censorship law that imposes severe content-based restrictions on the availability, display and dissemination of constitutionally protected speech on the Internet.”

“The act infringes the liberties of the residents of the state of Utah, imposing the restrictive hand of the state to supplant the power and responsibility of parents to control that which may be viewed by their children,” the plaintiffs argued in the complaint. “It also infringes the liberties of millions of persons outside Utah who are affected by these restrictions.”

Speaking to reporters last week, assistant Attorney General Jerrold Jensen argued that the law was designed to extend restrictions placed on sexually explicit materials in the physical world into the virtual world, and argued that the alterations made to the law in 2005 were necessary, given the changes in technology since the act was first passed in 1973.

“In the '60s, we didn’t have an Internet,” Jensen said. “A minor cannot go into a book store and get Hustler magazine. [The defendants] are taking the position that applying the Harmful to Minors statute to Internet content [distributed] to minors is unconstitutional. We are going to argue that it can be done, they are going to argue it can’t; that’s an issue that’s fair game for the courts.”

Representatives for both the plaintiffs and state of Utah were unavailable for comment at press time.