SALT LAKE CITY — Utah has become the first state to allow civil lawsuits against distributors of adult content for mental and physical damages incurred by minors accessing such material.
On Wednesday, Gov. Gary Herbert signed SB 185, which was seen by many as a sequel to a resolution last year that declared the distribution of porn to be a "public health crisis."
SB 185, however, offers safe harbor to adult distributors who make a good-faith effort to verify a user’s age and prominently display a content warning about the “dangers” of porn.
As the bill sailed through the state Legislature and traveled to the governor’s desk for his signature, some lawmakers were warned that it would be tough to prove damages in such lawsuits.
Nonetheless, the new law titled “Cause of Action for Minors Injured by Pornography,” allows for actual damages and punitive damages, as well as class action standing, in such claims. Damages could be assessed on the costs of “rehabilitation” for minors.
Eric Paul Leue, the executive director of the Free Speech Coalition, told XBIZ that Utah’s new law is the latest in “a new slate of morality legislation aimed at harassing and silencing the adult industry.”
“The bill was rushed through with little input from anyone other than moral conservatives, and it is blatantly unconstitutional,” Leue said. “Unfortunately, as an industry, we're familiar with such tactics and are fighting back in the courts, the legislatures and the press.
“But we have a busy year — there are over two dozen bills in state legislatures this year, limiting or censoring adult speech, and more will likely follow in the wake of SB185.
“If we're to be victorious, we'll need all members of the industry to stand up and join us in this fight."
Leue earlier this month sent a letter to the bill’s author, state Sen. Todd Weiler, complaining that the piece of legislation as drafted violated “First Amendment protections, undermines critical legal principles and is riddled with such ambiguous language that it could actually protect adults who unlawfully display adult material to minors.”
In the letter, Leue said the “shortcomings in this legislation are a product of your failure to reach out directly to the adult film industry to discuss your concerns and to identify effective solutions.”
In particular, Leue noted in the letter that SB 185 needed to incorporate detailed language to limit the liability of adult film companies, including what type of "warning" must be used to trigger the "good faith" protection for adult distributors.
“Is it at the point of purchase? During all explicit scenes? This clarification is critical not only to prevent unnecessary lawsuits, but also ensure the warning is effective,” Leue wrote in the letter to Weiler. “What if only portion of an adult film is shared by an adult through a cellphone; does the warning have to be attached to that portion? How does an adult company control such sharing? What about pirated material?”
Weiler told XBIZ that there wouldn’t be a need to clarify all points of the new law, other than what has been written into SB 185.
“Look, the whole idea of the law is patterned after what states did with Big Tobacco,” Weiler said. “We’re just asking for pornographers to be good corporate citizens. There are no First Amendment implications here; suits filed will be [adjudicated] under the theory of product liability.
“Quite frankly, pornographers who distribute content in the state need only verify a user’s age and display a content warning page,” he said. “The safe-harbor provision is something I’m proud of adding to the [piece of legislation].”
Weiler noted that civil suits could be prickly, and that “there likely will be lots of legal maneuvering.”
“If a parent notices that a minor has been accessing numerous adult websites that don’t comply with the law, each of the sites and their companies could be named to the suit,” he said.
Industry attorney Lawrence Walters of Walters Law Group, upon comment, told XBIZ that the new Utah law is "yet another flavor of insidious censorship focused on the adult entertainment industry in the increasingly hostile political climate."
"Instead of imposing direct criminal prohibitions, the law tries to accomplish its goals by stimulating the interest of plaintiffs’ lawyers seeking large damages awards and class action settlements against distributors of constitutionally protected erotic expression," Walters said. "The new law represents part of a multi-pronged approach designed to make distribution of adult entertainment more financially risky.
"For better or worse, it will be up to the limited number of competent First Amendment attorneys to help stave off this assault on the adult entertainment industry now that legislation like this is actually being signed into law. We are following these developments with keen interest."
Industry Marc Randazza of Randazza Legal Group told XBIZ, sarcastically, that he thinks the new Utah law is “fantastic.”
“Why do I think so? Because I was just a kid when American Booksellers v. Hudnut was being fought,” Randazza said. “And, that's one of the cases that inspired me to be a First Amendment lawyer.
(American Booksellers v. Hudnut was a 1985 court case that challenged the constitutionality of the Antipornography Civil Rights Ordinance as enacted in Indianapolis.)
“I am grateful to the Utah Legislature that they have passed such an idiotic law that it will be nice low-hanging fruit to knock out and to relive the wonderful First Amendment glory of the win in the Hudnut case.
“Every time a legislature passes something stupid like this, it allows us to create more good case law protecting the First Amendment.”
Another industry attorney, Gill Sperlein, said that the new Utah law is proof that "we are living in an era in which bat-shit- crazy right wing conservatives are feeling emboldened."
"They can feel confident that the current presidential administration will not use the power of the Justice Department to mount legal battles against this type of legislation," Sperlein told XBIZ. "However, the First Amendment has not been repealed and it is still good law.
"Affected citizens and nonprofit organizations will pick up the slack and will easily establish the unconstitutionality of this wack-job legislation."
Corey Silverstein, an industry attorney who runs Silverstein Legal, told XBIZ that he too finds the new Utah law ludicrous.
"While I’d certainly hate for any of my clients to be faced with such a ridiculous civil suit, I hope that I will be the lucky lawyer who gets to challenge this law as being unconstitutional," Silverstein said. "This is by far one of the least thought-out bills I have seen to date.
"If he wanted to be transparent, Sen. Todd Weiler would have been better off calling the bill, 'I hate porn.' I would love to know whether this bill was reviewed by any legal professional and get to see that legal professional’s memorandum on whether this law would ultimately survive a constitutional challenge."