SALT LAKE CITY — Free Speech Coalition (FSC) on Wednesday petitioned the United States Court of Appeals for the 10th Circuit to review a decision handed down earlier this month by a three-judge panel of the same appeals court, which denied FSC the right to challenge Utah’s controversial age verification law by suing state officials.
That previous ruling represented the view of two judges out of the three. The new petition is for an en banc rehearing of the case, meaning that the challenge would be heard by all judges of the 10th Circuit, rather than just the smaller panel.
As XBIZ reported following that ruling, the 10th Circuit panel affirmed a district court’s motion to dismiss Free Speech Coalition v. Anderson, the industry trade association’s challenge to Utah’s SB 287 — the state’s version of the age verification laws promoted by religious conservatives throughout the country.
The panel’s rejection of the FSC appeal was not a ruling on whether the state’s age verification mandate itself is constitutional, but only about whether the group could challenge the statute by suing those public officials, whom FSC argues are closely tied to implementation and enforcement of the law.
FSC justified its new filing by citing, in a statement, what it called the “impassioned and well-reasoned dissent” by Judge Gregory A. Phillips, in which Phillips “argued that the court should have allowed the case to continue against Utah’s Commissioner of Public Safety.”
According to the petition, in the Oct. 1 decision, the majority finding — that Utah’s attorney general and commissioner of public safety are not responsible for enforcement of the law, and therefore cannot be sued by FSC over it — conflicts with both 10th Circuit and Supreme Court precedent.
FSC Executive Director Alison Boden stated that Phillips’ dissent raised key constitutional issues that merit review by the full 10th Circuit.
“These laws are having a significant chilling effect on the rights of adult businesses and consumers, and the state has a significant role in enforcement,” said Boden.
Industry attorney Corey Silverstein told XBIZ the while he supports FSC’s “tireless efforts in combating Utah’s outrageous and unconstitutional age verification law — a fight that the adult industry cannot and should not give up on and which should be supported by the entire adult industry,” he believes the chances of the 10th Circuit granting the en banc petition are low.
“Statistically the 10th Circuit grants less than 3% of such petitions,” he explained. “Also, the trial court had dismissed the lawsuit on a very procedural issue that rarely makes it to an en banc review.”
