Judge Hears Arguments in Case Against Utah Law Restricting Speech on Internet

by Betsy Gomez

Last June, CBLDF joined the ACLU of Utah and the Media Coalition in an effort to bar the enforcement of Utah House Bill 260, a law that seeks to restrict constitutionally-protected speech. US District Judge Dee Benson heard arguments about the case this week, but he didn’t issue a ruling. Instead, he directed the parties involved with the case to resolve their differences over two contentious sections of code in the law within the next 30 days.

House Bill 260, introduced in 2005, called for a rating system for websites and a registry of websites that contain adult content, tools that consumers could use to block sites. According to lawmakers, only internet providers in Utah would be subject to the regulations, but the the organizations challenging the law felt it violated interstate commerce laws and placed unconstitutional limits on speech.

The Salt Lake Tribune covered the this week’s arguments, relating the concerns free speech advocates have over the law:

“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 providers’ speech, and violates the Commerce Clause of the U.S. Constitution,” the ACLU argued in court documents.

Artist Nathan Florence, a plaintiff in the suit, is challenging an aspect of the law that requires labeling of websites as “harmful to minors” in some cases. The ACLU alleges the law considers visual art, photography, graphic novels, sexual health information and information about rights for the lesbian,gay, bisexual and transgender communities “harmful to minors.”

In their press release about this week’s hearing, the ACLU of Utah writes:

Today, the ACLU of Utah as a plaintiff along with a coalition of booksellers, media companies, and artists, will argue a set of critical motions in the case of Florence v. Shurtleff, No. 05-CV-485 (United States District Court, District of Utah). In its motion, the ACLU of Utah seeks a ruling from the federal district court that a Utah statute restricting speech on the Internet is unconstitutional. Utah’s law seeks to regulate all Internet speech that may be considered “harmful to minors.” The law goes beyond constitutional limits, however, because 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. For their part, the Utah Attorney General and the County Attorneys defending the law have made motions seeking to dismiss the lawsuit, or for a judgment that the law is constitutional. They contend that certain changes to the law since 2005 have solved the statute’s constitutional problems and that, in any event, plaintiffs have no standing to sue anymore.Since August 2006, a preliminary injunction agreed to by both sides has blocked the enforcement of the challenged sections of the statute. At today’s hearing, the ACLU of Utah will request that this injunction be made permanent.

The Plaintiffs will be represented at the hearing by Michael Bamberger and Richard Zuckerman, partners of SNR Denton US LLP. “We do not agree with the defendants that the changes in the law after 2005 save this statute,” said Mr. Zuckerman. “The defendants are essentially asking us to trust them not to prosecute people who post words and images on websites, because their current view is that the law does not apply to Internet speech. Of course, their opinion could change at any time in the future, and such assurances do not make the statute constitutional,” he continued. “Utah may properly restrict one-to-one ‘harmful to minors’ communications made to a specific minor, but this statute goes far beyond that,” he concluded.

For more on the case, visit The Salt Lake Tribune, the ACLU of Utah, and the Media Coalition. CBLDF’s announcement about the case can be found here.

Please help support CBLDF’s important First Amendment work by making a donation or becoming a member of the CBLDF!