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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 argued in U.S. District Court on Thursday.
The ACLU filed a motion in federal court in June asking that the law be struck down. But supporters of the law, including the Utah Attorney General's Office, argue the legislation protects minors and that certain changes to the law have alleviated concerns over it being unconstitutional.
U.S. District Judge Dee Benson heard arguments on a series of motions in the case Thursday, but didn't issue a ruling. He instead ordered the parties in the case to try to reach an agreement over their differences within the next 30 days over two sections of the code: 76-10-1206 and 76-10-1233.
Benson's ruling is the latest legal turn 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. Jon 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, 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."
"This law puts a chill on the speech of individuals and organizations like the ACLU of Utah in their efforts to educate the public about their rights," said John Mejia, legal director of the ACLU of Utah. "While the state has a valid interest in seeking to protect minors, this statute sweeps too far in trying to accomplish that goal."
Assistant Attorney General Jerrold S. Jensen said following Thursday's hearing that the plaintiffs in the lawsuit are misconstruing the law as a "worldwide prohibition of content."
"They're claiming it restricts Internet content providers throughout the world," Jensen said. "We're saying it only restricts one-on-one communication of material harmful to minors.
Jensen said the statute can only be applied in "one-on-one situations," such as when a predator targets a juvenile in a chat room. The statute also doesn't apply outside of Utah and is intended for the "very narrow distinction" of one-on-one communication, he said.
He used the example of a 13-year-old who is sold a Hustler magazine in a magazine shop. The clerk who sold the magazine can be punished, because they knew they were providing "harmful content" to a juvenile. The same rule applies on the Internet, if someone knows or believes the recipient of harmful content is a minor, Jensen said.
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