A group of bookstores, websites, Internet service providers, and trade associations backed by the American Civil Liberties Union filed a federal lawsuit against the State of Utah on Thursday. The suit seeks an injunction blocking a state law that requires ISPs to block websites determined by Utah Attorney General Mark Shurtleff to be pornographic.
SB 260, signed into law by Republican Governor Jon Huntsman on March 21, comes under the guise of child protection, but is being challenged on the basis of First Amendment and interstate commerce violations.
“This law has nothing to do with the laudable goal of protecting children,” said Wesley Felix, a shareholder in the Salt Lake City law firm of Bendinger, Crockett, Peterson, Greenwood & Casey and co-counsel for the plaintiffs. “Not only does it not accomplish its stated objective, but it casts such a wide net that a lot of valuable and perfectly legal speech will be censored.”
The law reads, in part, “Upon request by a consumer, a service provider may not transmit material from a content provider site listed on the adult content registry.”
Although both New York and New Mexico have taken aim at adult sites with similar measures, both were defeated on First Amendment grounds. The Utah law shifts that strategy by taking aim at ISPs, who must provide a way for consumers to disable access to sites on Shurtleff’s list or face felony charges.
“To comply with the law, Internet service providers are authorized to block access to certain content, and this would almost unavoidably lead to the blocking, and thus the censorship, of innocent websites,” said co-counsel John Morris of the Center for Democracy and Technology. “Also troubling is the fact that the publishers of these sites may never realize they’re being blocked.”
Last September, a Pennsylvania law that tried to force ISPs to block access to sites accused of hosting child pornography was ruled unconstitutional. That fight also was lead by the ACLU and the CDT.
The lead plaintiff in the Utah case, Betsy Burton, owner of the The King’s English Bookshop in Salt Lake City, expressed concern that the law will affect her business, even though she doesn’t operate a strictly adult website. Her site features descriptions and art from both children’s and adult books.
“Unless I limit the website to children’s books or attempt to exclude children from our website, I risk the danger of a criminal charge. Both of these alternatives are incompatible with the nature of a general community bookstore such as The King’s English,” she said.
Further, opponents say the law has no apparent appeal process.
“Unfortunately, legislators chose to pass a convoluted bill, despite warnings that courts have consistently struck down laws like this because they violate the First Amendment and the Commerce Clause,” said ACLU of Utah staff attorney Margaret Plane.
