by Christopher Schiller
A lot of legal discussion has been coursing through the Internet about the recent events in the Florence v. Shurtleff court battle and, as is often the case when lawyers are involved, the terminology and meaning of the discussion can sometimes get away from the casual observer and the significance lost. This posting is a quick and dirty attempt to provide a simplified explanation of what is going on.
I have been asked to attempt to explain, in plain language the recent decision in Florence v. Shurtleff in Utah. This will be cursory, and therefore, incomplete. I am a lawyer, but, this cannot be taken as any form of legal advice, especially since I do not practice in the state of Utah. And since litigation is not part of my practice, this also will be a more theoretical explanation than one of substance. Think of me as a professor you caught in the hallway between classes to ask a quick question about this case you heard about in the news. In other words, it might be useful on a basic level of understanding, but, don’t hold me to anything I say here.
The Statute as enacted
The full history of the law’s passage and the followup legal battles are nicely summarized in a running commentary by the mediacoalition.org but the legalese and machinations can be a bit daunting to get through for the uninitiated (read as, those without a huge law school debt behind them).
In simplified terms, the statute in question, as enacted and signed into law in Utah in 2005, basically establishes:
- The crux of the law is trying to deal reasonably with restricting “material harmful to minors”
- It mandates the attorney general must create a database of URLs and IP addresses and the like that offer this sort of material.
- It leaves it to the attorney general’s call as to what sites are in the database and which individuals are in trouble.
- It requires service providers and content creators to “properly rate content” or else
- There are also severe criminal penalties and jail time stipulated for violations.
There were other sections that talked about making (and partially paying for) PSAs to help inform the public and to monitor the progress of software tools available to better do the job of watchdogging our children’s Internet experiences (progressive thinking, that, for 2005), but all in all, it was a pretty standard example of legislation in most ways.
What are the arguments for
The state is trying to do a good thing. Problems arise when the method used gets confused as to where they receive their power and authority. There is nothing much more laudable than the general goal of protecting children from harm. The style of laws with such a purpose derive their authority from a strong state responsibility of protection of their citizenry and assisting, when necessary, parent’s rights to protect their children’s development and exposure to the world. These are to be considered in a wholly separate fashion from child pornography laws which are enacted to physically and mentally protect the children involved in the creation of the pornography. That immediacy and permanency of harm requires and allows for a much stricter formulation of laws because child pornography lies outside the protections of a citizen’s First Amendment right to freedom of speech. I bring this up because of the clear confusion evident in Utah’s basis for it’s laws against material “Harmful to minors”. Though the statute in question does not provide the definition of what is to mean “Harmful to minors” there is only one Utah Code section (76-10-1109) I can find that provides the state’s definition. In subsection 5 the definition of “Harmful to minors” deals with material that exhibits “in whatsoever form, of nudity, sexual conduct, sexual excitement, or sadomasochistic abuse” as it apples to minors.
The definition uses the tell-tale sign of formation clearly derived from the seminal U.S. Supreme Court’s 1973 decision in Miller v. California defining one of the few forms of speech not protected by the First Amendment, obscenity. Therein lies the rub. “Material harmful to minors” clearly is intended to extend to much more material than that which is just obscene and therefore not protected by the First Amendment. Very little material is ever found to fail the Miller test in real life, therefore it’s strict (and developed over decades of specific legal precedent) construction serves as a final nail in the coffin of rare speech that is just beyond the very edge of discourse. The Supreme Court carefully constructed the three part test in order to preserve as much speech as possible under the constitutional strength of legitimacy. The default should always be that speech is free. When a state co-opts this finely crafted and hotly debated rule set for a completely different purpose it nearly always results in a trampling of speech that by all rights has to be free.
Laws like the Utah statute at issue in Florence v. Shurtleff are intended to prevent the real world from exposing itself to children prematurely. Now let’s be clear, the responsibility for protection of a child’s welfare falls squarely on the parent or guardian. The state (meaning government) should only step in to assist rarely and only when proven absolutely necessary and only so far as necessary. This has been articulated time and again in countless court decisions and within common sense.
When a state steps into those shoes, it has to remember the source of the power to act which, if a prudent path is followed, will limit the choices made to the barest minimum necessary without infringing on other’s rights or freedoms. Often, it seems, the true limitations of that power to act are lost in the cries of “Protect the child!” echoing through the stone hallways of the legislative chambers. The differences between the reasoning behind laws with “child” in their title are confused or muddled. Then, cases like this one work their way through the courts.
What are the arguments against
Whenever a law attempts to restrict any manner of the free expression of ideas, alarm bells should go off. Even if a reasonable and justifiable situation can be identified where such restrictions can be warranted, the courts have tread cautiously, applying their strictest scrutiny to the formulation and limitations of the law to assure that no more than what is necessary is done so as to prevent the imposition of unfair restrictions upon others. The default must be that speech, in all its forms and formulations, is free. And only in the rarest of rare cases can we or should we interfere with that.
So when a legislative body passes a law that treads in the arena of free speech there is a duty to make certain that the constitutional right of freedom of speech is not unduly restricted in the fervor of other state concerns. If a law is found to be “overbroad”, where its application falls not only onto the intended violators, but also falls onto unintended victims and quells speech that by all rights should be freely expressible, then a reassessment of the law is in order. And this law has been argued to be considerably overbroad in its reach, from the wide latitude given the Attorney General in deciding which material must be placed in the database and who is to be considered offenders under it to its compelling ISPs and content providers to have to rate all material “properly” to its vaguely stated purview and take down material clearly protectable as constitutionally free speech.
Though there are no run of the mill overbroad laws, ones with such serious flaws and overreaching definitely quell whole swaths of speech that constitutionally should be freely part of the discourse.
There are other strong arguments against this law, some argued, some not yet, like the fact of potential fines and felony jail time issued for acts that are clearly allowed as protected free speech flaws in construction which make its application difficult or impossible to carry out fairly even outside of the free speech aspects.
It is a flawed law.
Ruling in plain language
Back in 2005, the Internet was a scary place. (I mean, there wasn’t even a publicly available Facebook to make ‘friends’ on, come on.) Lots of legislative moves, at both state and federal levels, were attempted to wrangle the beast, that few old folks understood, into submission.
Of course, inevitably, time passes. Compared to the plodding march of time typical of court processes, time on the Internet flew ahead with incredible breakthroughs and solutions to problems faster than one could blink.
And so, the machinations and meticulous speculations of how to monitor and regulate the flow of information across the Internet back in the day, by now, has become as quaint and appropriate to the times as a steam punk convention’s dealer room.
Both the plaintiffs and defendants recognized that technology has evolved for parents to much more easily handle the regulation and imposition of limits on a child’s exposure to the bulk of the Internet’s seamier sides. The judge accepted this admission by both parties and issued a declaratory judgement which, in essence, states:
- The statute is narrowed in scope to only apply to person to person contact between a person aiming to reach to a child with material “harmful to minors”.
- And as long as reasonably accessible software exists to restrict access to material “harmful to minors” then the third party deliverers can’t be found amiss of another section of the law –notably, they cannot be subject to a civil trial or fine.
In a five page declaratory judgement there is little room for stipulation of much once all the legalese is added, but at least the rest of this law has lost a lot of teeth that could bite an inadvertent victim exercising their rights to free speech.
Results so far?
Utah wins because the law can stay on the books, albeit with a lot fewer teeth.
Opposition wins because the much narrower applicable focus limits damage to unintended victims and the realization that available technology has made most of the law’s reasons for being moot.
Free speech wins because the removal of the compelled ratings, civil liability and the resultant chilling of speech have made open discourse in the state much more like the freedom the Constitution guarantees.
What’s still in play?
The law still has lots of elements that could possibly be challenged in future proceedings even if they haven’t risen to the level of discourse about the case as yet. For example, there’s a potential opportunity for a due process challenge (a legal concept whose important meaning regrettably will be left for a future discussion). There is also the unbalanced nature of the law telling how to put things in the database, but, no procedure for how to correct it or take things out. And there’s always appeals and future lawsuits on different grounds.
The courts, in general, act only when they have to. Therefore, you seldom get a definitive, final answer to anything. More often, judges encourage the parties to settle and agree on as much of the dispute as possible before they rule on anything. When an agreement can be reached, the judge will often acknowledge such by issuing a declarative judgement (meaning much like what it sounds like) when asked. If there is anything left in dispute, then the remainder is debated, sent along and eventually settled, dropped or forgotten.
That’s why a result like this, being a technical, not very substantial decision point, is jumped upon by pundits. It’s more than what usually results from cases and can actually be pointed to and said of it, “Look! Something changed!!!”
But it is the little steps that take you the farthest. As anyone who has watched the development of First Amendment case law knows, the body of law is large and extremely hard to move. It takes a lot of little, persistent nudges to get it and keep it moving in the right directions.
In a private discussion about this blog entry with me, Charles Brownstein of the CBLDF expressed that view well,
“I think the current ruling, and the 7 years that went into getting here, absolutely represents a substantial decision point. Although the result here may seem like a persistent nudge, things would have been much different had this suit not been brought. Among the good results is that no one noticed any changes to their rights while the law was argued. If the law wasn’t argued, it would have taken a prosecution to address these issues, and been much harder to change. The free speech climate in Utah is undoubtedly stronger because of the fight against this law than it would have been if this fight didn’t occur. Likewise, the fact that the unconstitutional speech oriented elements were removed because of their constitutional infirmity will help prevent similar legislation from popping up.”
Now if you’ll excuse me, I am late for my office hours and we’re blocking the flow in this hallway.
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Christopher Schiller is an independent, New York attorney whose practice focuses on copyright, entertainment, international art and media law. His diversity of personal and professional interests allows him to bring a broad perspective to the questions he’s asked to answer. http://www.christopherschiller.com