SALT LAKE CITY, UT—According to a story on the Brigham Young University news site, The Daily Universe, Utah Gov. Gary Herbert has signed into law the bill first proposed by Sen. Todd Weiler, which would allow families in the state to sue adult companies who released products that allegedly caused "emotional or psychological harm" to their child—but there's a good chance that either no suit will be brought under the Act, or if brought, would be unsuccessful, though fighting it could easily put an adult producer out of business due to legal costs.
According to The Daily Universe, "The bill’s sponsor, Sen. Todd Weiler, R-Woods Cross, said the legislation is a follow-up to a resolution that was passed last year declaring pornography a public health crisis in Utah." Weiler also said that "to include adults [in the bill] as well would overstep legal boundaries."
The text of the law, which can be found here, defines "pornographic material" essentially as obscenity, under the definition of same that was adopted by the U.S. Supreme Court in its Miller v. California decision: "material that: (a) the average person, applying contemporary community standards, finds that, taken as a whole, appeals to prurient interest in sex; (b) is patently offensive in the description or depiction of nudity, sexual conduct, sexual excitement, sadomasochistic abuse, or excretion; and (c) taken as a whole does not have serious literary, artistic, political, or scientific value." However, as AVN pointed out when it originally analyzed the bill, if such a suit were brought, it could easily turn into a de facto obscenity trial, although under the legal concept of "obscene as to minors," that Miller definition might not necessarily apply in the same way it would if the government were bringing a simple "obscenity" charge against the material.
In any case, the bill provides that a producer or distributor is liable if the viewer of the material is a minor, and "the pornographic material is the proximate cause for the person being harmed physically or psychologically, or by emotional or medical illnesses as a result of that pornographic material." (How a person, even a minor, could be "harmed physically" by viewing explicit material, or contract a "medical illness," is not explained in the bill.)
Safe from liability under the bill, however, are ISPs or any "interactive computer service" (NetFlix? Roku? The bill doesn't make that clear); "a telecommunications service, information service, or mobile service, including a commercial mobile service"; cable TV companies, phone companies, "a distributor of Internet-based video services" and "hosting companies," defined as "a person that provides services or facilities for storing or distributing content over the Internet without editorial or creative alteration of the content."
Also exempted from liability under the bill are person-to-person communications; anyone or entity that provides "a connection between one person and another person" (dating sites? Tinder? Grindr? Again, the bill doesn't say) or provides "data storage space" or caching to another person; or any entity that "does not intentionally aid or abet in the distribution of the pornographic material" or receives a fee for doing so.
Additionally, adult producers/distributors should be able to avoid prosecution if "the person who distributes or otherwise provides pornographic material: (a) provides a warning that: (i) is conspicuous; (ii) appears before the pornographic material can be accessed; and (iii) consists of a good faith effort to warn persons accessing the pornographic material that the pornographic material may be harmful to minors; and (b) makes a good faith effort to verify the age of a person accessing the pornographic material." In other words, if the producer/distributor takes the steps that many attorneys serving the industry have recommended: that the material not appear on the front page of the website or the menu screen of a DVD (or any screen that shows up before the menu), that such front page/menu include a workable method for screening out minors who attempt to access the material, and that those opening screens make it clear that the material "may be harmful to minors."
However, if a suit is brought, and the producer/distributor is found liable, the court may assess both actual damages, such as bills from treating physicians or psychologists, as well as punitive damages, for which no limit is set in the bill itself. The bill also allows for class action suits to be brought that, if successful, could easily bankrupt the producer/distributor—which may be one of the bill's objectives.
Shortly after the bill was originally filed, Free Speech Coalition released a statement condemning the legislation.
"The bill opens up adult producers to potentially thousands of frivolous harassment lawsuits," the adult trade organization wrote. "Sen. Todd Weiler, who introduced the bill, cites the state’s noxious, anti-science 'porn as public health crisis' declaration as justification. The Free Speech Coalition is working with Utah based civil rights advocates to fight the legislation, lobbying legislators to educate them about the industry, and preparing the groundwork for possible court challenges should it pass."
In addition, FSC sent a letter directly to Sen. Weiler and other Utah legislators, where it said, in part, "The bill as drafted violates First Amendment protections, undermines critical legal principles, and is riddled with such ambiguous language that it could actually protect adults who unlawfully display adult material to minors... S.B. 185, for example, could have the unintended consequence of diverting legal liability from adults who share adult content with minors. According to recent news reports, a high school baseball coach in Woods Cross [Sen. Weiler's home district] is accused of showing adult films to his players. Pursuant to S.B. 185, any of these minors could file a lawsuit against the adult film company to recover damages. In this situation, the coach should be wholly responsible for any injuries to the minors involved. S.B. 185 fails to specify that adult film companies will not be held liable in these circumstances."
The letter also takes Weiler to task for failing to reach out to the adult industry in any way when drafting the legislation, and notes, "The Free Speech Coalition is opposed to access to adult material by minors, and has worked with both individual companies and filtering services to prevent such access. If you had reached out to us prior to introducing this legislation we would have been able to share our expertise on the issue and provide insight into how the industry actually works."
The full text of the letter can be found here.
Pictured: Utah Sen. Todd Weiler.
