Utah Businesses, Free Speech Groups and Individuals Challenge Restrictions on Internet Speech

Affiliate: ACLU of Utah
June 9, 2005 12:00 am

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SALT LAKE CITY — Citing free speech and interstate commerce violations, the American Civil Liberties Union of Utah today joined a broad based group of bookstores, artistic and informative Web sites, Internet Service Providers and national trade associations in filing a federal lawsuit challenging the constitutionality of a Utah law meant to restrict children’s access to material on the Internet.

“This law has nothing to do with the laudable goal of protecting children,” said Wesley Felix, a shareholder at 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.”

Betsy Burton, owner of The King’s English Bookshop in Salt Lake City and the lead plaintiff in the lawsuit, is worried about the effect the law will have on her business’ Web site that features descriptions and jacket art from a wide variety of books for children and for adults.

“Unless I limit the Web site to children’s books or attempt to exclude children from our Web site, I risk the danger of a criminal charge,” said Burton. “Both of these alternatives are incompatible with the nature of a general community bookstore such as The King’s English.”

Burton also criticized the law for not outlining any sort of appeals process. “If I found out that my site is considered harmful to minors, how would I challenge this designation?”

The new law, passed by the 2005 session of the Utah legislature, has three primary components:

  1. Utah Internet content providers must evaluate and rate their speech, at the risk of criminal punishment.
  2. The Utah Attorney General must create a public registry of Internet sites worldwide containing “material harmful to minors” — speech that is unlawful to intentionally distribute to minors but that is constitutionally protected for adults.
  3. It extends existing criminal restrictions on distribution of “harmful” materials to distribution on the Internet.

The ACLU charged that other laws with similar provisions have been uniformly held unconstitutional by federal courts across the nation, including the U. S. Supreme Court.

“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.

Michael Bamberger of Sonnenschein Nath & Rosenthal LLP, New York, NY, co-counsel in the case, said that the law has a chilling effect on the speech of people like Burton.

“It is very likely that some Web publishers may try to avoid problems altogether by not posting speech they think might be considered in violation of the law,” said Bamberger. “Courts have repeatedly rejected laws that lead to this sort of self-censorship.”

The lawsuit also challenges a provision that may lead to the blocking of a significant number of innocent Web sites simply because they have the same Internet protocol addresses as targeted sites.

The Utah Progressive Network and Andrew McCullough, who joined today’s lawsuit, have Web sites that are hosted on shared Internet addresses with unrelated sites, some of which contain material likely harmful to minors. They fear that because of the new law, their sites and their constitutionally protected speech will be blocked.

“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.”

The case, The King’s English v. Shurtleff, challenges Utah Code § 67-5-19, §§ 76-10-1205 through 1206, and §§ 76-10-1230 through 1233.

Clients in the lawsuit are The King’s English, Inc.; Sam Weller’s Zion Bookstore; Nathan Florence; W. Andrew McCullough; Computer Solutions International, Inc.; Mountain Wireless Utah, LLC; the Sexual Health Network, Inc.; Utah Progressive Network Education Fund, Inc.; the American Booksellers Foundation for Free Expression; the American Civil Liberties Union of Utah; the Association of American Publishers; the Comic Book Legal Defense Fund; the Freedom to Read Foundation; and the Publishers Marketing Association.

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