Feb 29, 2008 3:00 PM PST    Text size: 

“The Supreme Court consistently holds that the moral ‘standards of the community’ define what is obscene,” Cannon said in a statement released Thursday. “It makes sense that the people of Utah, through their courts, be the final arbiters of what is morally acceptable. For too long, federal courts have created a dangerous climate for our children by overturning important decisions of state courts that restrict pornography consumption and distribution within its borders.”

The actual text of the bill has not been published as of press time, but Cannon insisted that the measure does not represent an attempt to deprive anyone of their rights, and that there is “persuasive historical precedent for limiting jurisdiction.”

“In no way does this legislation deny anyone his day in court,” Canon said. “Instead, it simply shifts that decision from the federal court system to the system closest to the people of Utah and other states. Pornographers should not be able to shop for a federal judge in California with the authority to tell Utahns what is and what is not obscene and unacceptable.”

Reed Lee, an attorney with JD Obenberger and Associates and a Free Speech Coalition board member, told XBIZ that while bills like Cannon’s are commonly proposed, they rarely pass, and even more rarely survive court scrutiny.

“The general term in constitutional law for this kind of legislation is ‘court-stripping law’,” Lee said. “They are almost always unsuccessful, because they are so scary.”

Lee said court-stripping laws are dangerous because they have the effect of removing the federal courts from the equation, and open up the chance for any given state’s political majority to trample on its opposition. In the civil rights era, for example, court-stripping laws were frequently proposed in an attempt to keep federal courts from reviewing segregation laws and laws against interracial marriage.

“The framers of the Constitution intentionally designed the Federal courts to be a counter-majoritarian measure,” Lee said. “That’s why we have lifetime appointments for Federal judges instead of having them be elected; it makes them less likely to bend to the will of the majority. Individual rights are protected by this counter-majoritarian measure.”

Lee said that while it’s true that some court-stripping laws have withstood court scrutiny, it is unlikely that Cannon’s latest proposal will ever reach that point. Cannon introduced the same measure in 2006, but the bill never made it out of committee; his latest measure may well meet the same fate.

“I doubt this [bill] is something that legislators will respond to by saying ‘now is the time to bite the bullet and take the chance of this coming back to bite us,’” Lee said.