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A controversial Utah law restricting material deemed "harmful to minors" on the Internet should be barred because it unconstitutionally restricts free speech and interferes with commerce, the American Civil Liberties Union of Utah is arguing in U.S. District Court.
The ACLU filed a motion in federal court on Wednesday asking that the law be struck down.
It's the latest legal maneuver in a case that began in 2005, when state Rep. John Dougall, R-Highland, introduced House Bill 260. The bill called for the creation of a "rating system" for websites and a registry for websites with adult content. A consumer could use tools to block material listed on the registry. A group called Citizens Against Pornography endorsed Dougall's effort, calling it a move to give parents more control over what their children view on the Internet.
Because of interstate commerce laws, Utah could require only those providers within the state to adhere to the proposed regulations. The bill became law following the 2005 legislative session.
But the new law immediately drew opposition from organizations who saw the bill as limiting free expression, including the ACLU.
The ACLU in June 2005 filed a federal lawsuit challenging the constitutionality of the law and alleging it violated interstate commerce. The organization filed the suit on behalf of the American Booksellers Foundation for Free Expression; the Association of American Publishers; the Comic Book Legal Defense Fund; Computer Solutions International; the Freedom to Read Foundation; The King's English Bookshop; W. Andrew McCullough; Mountain Wireless Group; the National Association of Recording Merchandisers; the Publishers Marketing Association; Sam Weller's Bookstore; the Sexual Health Network and the Utah Progressive Network.
"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.
The ACLU stated the law included a vague definition of what constituted a Utah-based content provider and that the law didn't consider technical problems with blocking systems.
In 2006, a district court judge ordered a preliminary injunction over the disputed parts of HB 260. The legislature then took up the bill in its 2007 session, with former Gov. John Huntsman signing into law a different version of the law, which repealed the adult content registry and the mandate that Internet service providers block access to sites on the registry.
But the ACLU again found issue with the amended law, and challenged the "Harmful to Minors Act" that Huntsman signed in another complaint in federal court.
Artist Nathan Florence, a plaintiff in the suit as well as several other organizations, 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 its Wednesday filing, the ACLU stated the law needs to be overturned.
"It is simply impossible for every person who makes available on the Internet constitutionally protected information, such as our "Know Your Rights" materials for students and LGBT youth, or paintings or photography depicting nudes to anticipate and monitor every person who might access that information and restrict access to those minors to whom the information might be considered 'harmful,'" said Darcy Goddard, legal director of the ACLU of Utah.
"There are other options available, such as parental controls, that could accomplish the state's goal of protecting minors more effectively and within the bounds of the First Amendment."
The AG's Office will have 30 days to respond to the ACLU's Wednesday filing. A hearing on the issue could take place in August, Goddard said.
An attorney from the AG's Office familiar with the case was not immediately available for comment on Wednesday. But Paul Murphy, a spokesman for the AG's office, said that the law is intended to protect juveniles.
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