SALT LAKE CITY—The anti-pornography elite, including Utah Sen. Todd Weiler, rejoiced when a federal district judge dismissed a lawsuit filed against state officials by a coalition of adult entertainment companies and industry stakeholders to block Senate Bill 287 and render it unconstitutional. Weiler, according to the Associated Press, wasn’t surprised that U.S. District Judge Ted Stewart, an appointee of former President Bill Clinton, told the plaintiffs that they had no grounds to sue the state of Utah because it isn’t the role of the government to enforce the age verification statute. It’s up to private citizens, or in this context, far-right anti-porn activists.
Adult industry advocacy organization the Free Speech Coalition (FSC) filed the lawsuit challenging Senate Bill 287 on the grounds that it violates the First and Fourteenth Amendment rights of porn companies, adult content creators, and consumers of adult content in Utah. Alison Boden, the coalition’s executive director and a former executive at Kink.com, said in a statement announcing the lawsuit in May 2023 that “the Utah law restricts adults’ access to legal speech and violates decades of Supreme Court precedent.”
But that doesn’t seem to phase the judge or the counsel representing Utah officials and the administration of Republican Gov. Spencer Cox.
Utah Attorney General Sean Reyes, another socially conservative Republican tied ideologically and spiritually to several in the Salt Lake City political establishment by the LDS Church, said that Stewart’s dismissal was a victory “for the rule of law.” “I applaud Judge Stewart’s decision,” Reyes said in a statement released by the attorney general’s office on Aug. 1. “It is well-reasoned and consistent with other case law denying pre-enforcement challenges against public officials.”
The case law Reyes refers to is what has caused several critics, even those outside of the adult entertainment industry, much alarm.
Judge Stewart dismissed the Free Speech Coalition’s suit seeking a preliminary injunction blocking the Senate Bill 287 age verification law based on a U.S. Supreme Court ruling dealing with a controversial law that was implemented in 2021 by religious conservatives and anti-abortion elected lawmakers in the state of Texas: Senate Bill 8.
Controlled by a Republican supermajority like in Utah, the Texas state legislature adopted Senate Bill 8 in 2021, which outlaws abortions after six weeks. This is about when a fetus shows cardiac activity, therefore giving the law the short title of the Texas Heartbeat Act.
Senate Bill 8 prohibits Texas officials from enforcing the ban but authorizes private individuals and entities to enforce the law by suing someone who performs, aids or abets an abortion procedure after the six-week limit built into the statute. Critics of Senate Bill 8 have characterized the Texas Heartbeat Act as the “abortion bounty law” that grants private citizens—such as anti-abortion activists—an inward-looking extrajudicial deputization to abuse the statute for political and personal gain. By extension, the law allows state officials and judges to evade some degree of pre-enforcement judicial review.
A lawsuit challenging the Texas Heartbeat Act was filed with the U.S. Supreme Court on request for an emergency appeal by abortion rights activists and reproductive health care providers. That case, Whole Woman's Health v. Jackson, rendered a decision by the conservative-leaning high court that abortion providers couldn’t sue state judges, court clerks, or the attorney general to stop the filing of private civil-enforcement lawsuits as permitted in the language of Senate Bill 8. This is a very troubling decision, but it didn’t come without merit or reference to previous case law.
The high court’s decision in Whole Woman’s Health was cited at length by Judge Stewart as justification for dismissing the lawsuit challenging the mandatory age verification law’s constitutionality.
“The Supreme Court rejected a similar argument in Whole Woman’s Health,” declares Judge Stewart in his order granting a motion by Utah Attorney General Sean Reyes to dismiss the suit. “There, the petitioners argued that enjoining the attorney general from enforcing a statute 'would also automatically bind any private party who might try to bring ... suit against them.'”
In other words, citing other case law and other decisions from the high court and the U.S. Court of Appeals for the Tenth Circuit, Stewart said that the Free Speech Coalition and the other plaintiffs had no right to motion for a pre-enforcement injunction. Rather, for a challenge to have merit, a private party must file a private civil-enforcement action against adult firms.
No wonder MindGeek withdrew from Utah and initiated a geo-block on all IP addresses from the Beehive State unless users know how to use a VPN or proxy server.
Being that Utah is one of the focal points of the national anti-pornography movement, it is also no surprise that adult entertainment industry activists and professionals are concerned that the age verification law could be co-opted by people who wish to use the power of the courts to censor First Amendment-protected forms of speech and sexual expression. Is this the dawn of the anti-porn bounty hunters and a return to Old West-style law enforcement? It may be a bit of a stretch to imagine a rise of anti-porn cowboys hunting down pornography and pleasure outlaws ... but the sentiment—and incentive—exists, and it could carry with it a degree of damage in general to the right to free sexual and consensual expression.
“The vagueness of the laws—who is at risk of potential liability and for what—encourages self-censorship, as we've seen with both adult and non-adult sites blocking content in states like Utah and Louisiana,” FSC director of public affairs Mike Stabile told AVN. “That, so far as we can tell, is the point. This type of censorship is relatively new, so most courts haven't fully grappled with them yet. The bounty laws were specifically designed to make it difficult to bring pre-enforcement challenges—in other words, for parties to challenge the law before someone uses it—as we're seeing in Utah.
"But that doesn't mean the underlying law will stand or the mechanism itself is sound," he added. "Like all censorship fights, it just takes time and dedication.”
With this sentiment in mind, the plaintiffs led by the coalition are appealing the dismissal of the case.
Boden, in a statement announcing the appeal, characterized the ruling as Utah’s attempt “to duck responsibility for a dangerous law passed by its own legislature, but make no mistake—the law is unconstitutional."
“Bounty programs are an insidious form of lawmaking,” said Eric Goldman, the associate dean for research and law professor for the School of Law at Santa Clara University, a private Jesuit Catholic-affiliated higher educational institution in Santa Clara. Goldman told AVN that these types of laws “make it harder for the regulated entities to challenge the law, even if the law is unconstitutional.
“Worse, they force the regulated entities to change their behavior even if no one actually challenges their practices by seeking the bounties,” he expounded. “I expect legislatures will embrace bounty programs so long as it helps insulate their work from constitutional scrutiny.”
But “bounty” laws aren’t inherently the problem. More or less, it is the intent of the law that should cause alarm. At least, that is what Cathy Gellis, an attorney and First Amendment-focused outside policy counsel, explained to AVN.
Gellis, based in the San Francisco Bay Area and a Techdirt.com contributor like this reporter, argues that “the problem is less with 'bounty' provisions as a general proposition because sometimes we actually want private actors to be able to bring lawsuits to help enforce laws against bad behaviors that might otherwise not be effectively checked if just left up to the state to do directly. But the details matter.”
Gellis went on to explain that when bounty laws are being used to impose censorship, there is a constitutional issue. “Making it so speech can be challenged by private actors means that people don’t just have to worry about the state directly coming after them for the things they say, but perhaps any number of other plaintiffs,” she said.
This “is why proponents of these provisions like them, because they would give them the chance to go after speech they don’t like themselves,” Gellis warned. “But some courts are struggling to recognize that empowering these private lawsuits is itself a form of state action and exactly the sort that the First Amendment prohibits.”
Another concern is that bounty laws like Senate Bill 8 in Texas or Senate Bill 287 in Utah grant a degree of sovereign immunity, a legal doctrine meaning that the state "cannot commit a legal wrong and is immune from civil suit or criminal prosecution" (per Wikipedia). The doctrine is clearly at play in age verification bills that intend to require government identification or sensitive personally identifiable information.
In scholarship published in the William & Mary Bill of Rights Journal, juris doctorate candidate Allie Zunski of the William & Mary Law School formulated a strong argument that bounty laws, in the context Gellis described, are not only tools to validate state sovereign immunity further but to infringe on “free expression of constitutional rights.”
Zunski, who is currently a judicial intern for a federal magistrate at the U.S. District Court for the Eastern District of Virginia, argues that “[t]he potential for blatant defiance of constitutional rights is terrifying for a number of reasons. As such, a citizen deputy statute would effectively chill or halt the exercise of constitutional rights unless or until a challenger willingly subjects oneself to massive liability in order to produce an avenue for challenge—with no guarantees, especially from the standpoint of a defensive challenge, that a constitutional disposition on the merits will be produced or that the challenger will prevail if one is.” Zunski adds that if no one challenges these sorts of laws, they could “prohibit constitutional conduct through fear.” (Just take a look at some of what's been happening in states passing these laws.)
The challenges to age verification statutes from the Free Speech Coalition and companies like MindGeek don’t mean they don’t favor any age verification tool. A sentiment among anti-porn lawmakers, especially religious conservatives who disagree with this type of protected speech, is that they wish to impose censorial measures in a “constitutional” format that relies on the sentiments of state power to police economic activity and, of course, the protection of state sovereign immunity which is ultimately enshrined in the Eleventh Amendment.
But does the end—arrived at without input from the regulated industries, mind you—justify the means?
To First Amendment attorney Larry Walters, the answer is a definitive no. “As with most legislation involving sexually explicit content, reason and logic are often lacking in the legislative debates,” Walters told AVN. “Instead, lawmakers have identified political power to be gained by backing laws that are likely unconstitutional. The interests of the adult industry or the negative effects of these laws (such as infringement on free speech, [the] ghettoization of disfavored content, diminished privacy, and increased likelihood of data breaches) are routinely disregarded.”
Walters, the managing partner of Walters Law Group, is also actively litigating on behalf of several adult entertainment companies and sex workers' rights organizations, such as the Woodhull Freedom Foundation, in the group’s ongoing litigation to render anti-sex trafficking law FOSTA-SESTA unconstitutional and an overreach of government power chilling speech.
Asked about bounty laws and the structure of age verification legislation like Utah Senate Bill 287, Walters said that “other forms of controversial speech are susceptible to this type of abusive legislation, including speech [about] abortion, guns, drugs, [and] immigration. ... Until a third party brings a suit under one of these laws, the constitutional issues may remain unresolved.”
