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Free Speech and Commerce Clause

Florence v. Shurtleff - During their 2005 general session, Utah legislators passed H.B. 260, “Amendments Related to Pornographic and Harmful Materials.” Meant to restrict children’s access to harmful material on the Internet, the law instead unconstitutionally limits the free speech rights of Internet content providers, may negatively impact Internet users who have no wish to restrict the sites to which they have access, acts as a prior restraint on Internet service providers’ speech, and violates the Commerce Clause of the United States Constitution. Under the new law, the Attorney General’s Office must create an “adult content registry” containing the URLs of all Internet sites worldwide that are not “access restricted” and that contain “material harmful to minors”—speech that is unlawful to intentionally distribute to children yet is lawful for adults to access. Once contacted by the Attorney General’s Office, Utah-based content providers will either have to restrict access to their sites through an as-yet-to-be-defined rating system or remove the offending content to avoid being charged with a third-degree felony crime. Additionally, the bill requires Internet service providers, at customer request, to block access to sites listed on the adult content registry as well as to those sites they can identify as containing material harmful to minors. Further troubles with the law include technical problems with blocking systems, a vague definition of what it means to be a Utah-based content provider, and the lack of an appeals process for content providers who wish to challenge the Attorney General’s designation that their sites contain material harmful to minors.

On June 9, 2005, the ACLU of Utah, along with cooperating attorneys from Howrey LLP, the Center for Democracy and Technology, and the Media Coalition, filed a federal lawsuit challenging the constitutionality of the new law, citing free speech and interstate commerce violations. The lawsuit was filed on behalf of: the American Booksellers Foundation for Free Expression; the ACLU of Utah; the Association of American Publishers, Inc.; the Comic Book Legal Defense Fund; Computer Solutions International, Inc; the Freedom to Read Foundation; Nathan Florence; The King’s English Bookshop; W. Andrew McCullough; Mountain Wireless Group, Inc.; the National Association of Recording Merchandisers; the Publishers Marketing Association; Sam Weller’s Bookstore; the Sexual Health Network, Inc.; and the Utah Progressive Network.

On August 25, 2006, the district court entered a stipulated preliminary injunction blocking the enforcement of the challenged provisions of HB 260 until final judgment in the case. Discovery was stayed until the end of the 2007 General Session of the Utah State Legislature, during which time defendants hoped to amend the problematic parts of the statute. On March 19, 2007, Governor Huntsman signed into law HB 5, “Internet Sexual Content – Protection of Minors,” which repealed the adult content registry as well as the requirement that Internet service providers, at customer request, block access to sites that would have been on the registry. Although HB 5 eliminated some of the issues in our lawsuit, there are several outstanding problems with the 2005 law, and on April 30, 2007, we filed an amended complaint.

In a November 29, 2007 opinion and order, the district court denied an attempt by the state to dismiss our challenge to the Utah Harmful to Minors Act. The court found that eight plaintiffs have standing to challenge the definition of “harmful to minors” and the application of the law to Internet transmissions. The court also found that the ACLU of Utah and Utah artist Nathan Florence have standing to challenge another new provision that requires mandatory labeling of websites as “harmful to minors” in certain circumstances. The decision now permits the case and its challenge to the Utah “harmful to minors” and mandatory labeling provisions to proceed on its merits.

On June 8, 2011, the ACLU of Utah along with a coalition of booksellers, media companies, and artists asked the federal district court in Salt Lake City to issue a permanent injunction, barring enforcement of a Utah statute that restricts constitutionally-protected speech on the Internet. Utah’s law seeks to regulate all Internet speech that may be considered “harmful to minors.” This law, however, is too sweeping in its scope, as it would result in restrictions on visual art, photography, graphic novels, and information about sexual health and the rights of lesbian, gay, bisexual, and transgender youth. In August 2006, the district court entered a stipulated preliminary injunction, which blocked the enforcement of the challenged sections of the statute. The ACLU of Utah is now seeking an order to make this injunction permanent.

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