Federal Court in Utah Protects Free Speech on the Internet

In a ruling last week, U.S. District Judge Dee Benson held that people cannot be prosecuted for posting constitutionally protected content for adults on generally accessible websites and are not required by law to label such content that they do post. Judge Benson’s order was issued in a lawsuit challenging a Utah law that threatened the free speech rights of online content providers and Internet users.  Plaintiffs in the case included a Utah artist, the American Booksellers Foundation for Free Expression [1] (ABFFE), the Association of American Publishers, the Comic Book Legal Defense Fund, the Freedom to Read Foundation, and the ACLU of Utah.

“The victory in the Utah case brings to a close an important chapter in the fight for free speech on the Internet,” said ABFFE President Chris Finan. “Beginning in the mid-1990s, ABFFE joined its Media Coalition partners in filing 11 successful challenges to Internet censorship statutes passed by the states, and bookstores were plaintiffs in every case. We thank them all for standing up for themselves and their customers.”    

In 2005, the Utah legislature extended to electronic communications its existing law regulating the distribution of “harmful to minors” content (i.e., speech that adults have a First Amendment right to receive but that minors do not).  In response, the plaintiffs filed a lawsuit arguing that the broadly worded Utah law violated the First Amendment by prohibiting lawful adult-to-adult communications on the Internet simply because a webpage or blog may be seen by a minor, while also compelling online speakers to label or rate such content.

Plaintiffs’ counsel worked with Utah Attorney General Mark Shurtleff to craft an agreement on the law’s implementation. Last week’s order makes clear that the only people who can be prosecuted under the statute for electronic communications are those who intentionally send “harmful to minors” materials to a specific individual known or believed to be a minor, or who send such material to a minor having negligently failed to determine the age of the recipient.  The order also narrowed the mandatory labeling provision in light of advances in Internet filtering software since the statute was enacted in 2005.

“This is a critical victory for free speech,” said David Horowitz, executive director of Media Coalition [2]. “This declaratory judgment makes clear that adult-to-adult communications on the Internet, and through other electronic means, cannot be restricted simply because minors also access the Internet and other electronic communications.” 

“We are grateful to Attorney General Shurtleff for recognizing that this narrow construction of the statute fully serves Utah’s interest in protecting minors, while also protecting our First Amendment rights,” said Michael Bamberger of SNR Denton US LLP, lead counsel for plaintiffs. “The resolution by agreement of the parties would not have been possible without the assistance of Judge Benson.”