Attorney General Mark Shurtleff said he made the decision to back off from implementing the law after he was informed by the Utah chapter of the ACLU that a coalition of civil rights lawyers planned to challenge it in the state court within the next several weeks.
John Morris, attorney for the the Washington-based Center for Democracy and Technology, which is helping to draft the suit, told XBiz that the Utah law is unconstutitional on several grounds.
"Service providers are not able to comply without unconstitutionally trampling on free speech," Morris told XBiz.
According to Morris, the suit also will claim Utah’s anti-adult law violates the commerce clause of the U.S. Constitution because it effects companies outside of Utah. "Every state that has attempted to regulate content on the Internet has fallen on the commerce clause," Morris said. "Only Congress can regulate what is essentially an interstate medium."
“All the Legislature really accomplished is forcing the state of Utah to spend money to defend a law that will be overturned,” Morris said.
Morris added that there are technical questions as to whether an ISP could actually block certain sites for only one customer.
New York attorney Michael Bamberger, who has represented both Playboy and Penthouse in the past, also is contributing to the legal challenge.
In most cases, such a suit would result in a temporary restraining order against the law being challenged, meaning any work done in the meantime could wind up being a waste of taxpayer dollars.
But Shurtleff said that if a judge tells him the case will be heard without a restraining order, he will press ahead on the law.
In addition to forcing ISPs to block adult sites, the law also requires sites to carry labels stating their content is harmful to minors.
The state Legislature earmarked $250,000 for implementation of the law, which was passed in March. Shurtleff said a portion of that money would be used to hire an investigator to help compile a list of adult sites accessible via Utah ISPs.
