Utah Legislation Requires ISPs to Provide Porn Filters

Porn Studies > Porn in the News

The Salt Lake Tribune, 8/24/05 - The collection of bookstores, publishers and Internet service providers upset at new anti-porn legislation have missed the point, and 11 of the 14 are not even affected by the new law, according to legal briefs filed Tuesday by state attorneys.

"This bill is not as complicated as people are trying to make it out to be," said Assistant Attorney General Jerrold Jensen, who has called for the dismissal of the lawsuit filed in June. "The plaintiffs absolutely don't understand it."

House Bill 260, passed earlier this year, requires Utah ISP's to provide pornography filters to customers who request it after Jan. 1, 2006. Two other provisions would go into effect four months later. Utahns who manage Internet content containing pornographic images would have to label their site "harmful to minors." The act also would require the Attorney General's Office to create a list of harmful sites that consumers could direct their ISP to block. The lawsuit filed by the American Civil Liberties Union of Utah, King's English Bookstore, Sam Weller's Book

Store and others claim the new law violates the First Amendment. ACLU of Utah Executive Director Dani Eyer declined to comment since she had not yet reviewed the legal filings. The original lawsuit said HB260 "infringes the liberties of the residents of the State of Utah, imposing the restrictive hand of the state to supplant the power and responsibility of parents to control that which may be viewed by their children." 

The suit also cites laws that were passed by Congress and nine other states that have either been found unconstitutional or have been blocked by the courts. The state claims Utah's new law is different since it leaves consumers the choice to block sites.

"There is no government censorship at all," Jensen said.

The lawsuit also contends that HB260 could block hundreds of clean Web sites that happen to be on the same servers as pornographic pages. The AG's office says the law allows ISPs to find other ways to filter out porn sites. The attorney general's filings call for federal Judge Dee Benson to dismiss the case and to find that 11 of the 14 plaintiffs do not have cause to file suit, since they are not subject to the law or have no realistic expectation of being penalized.

Jensen is hopeful the lawsuit will end before Benson has a chance to rule. "We are actually planning on having a meeting with the plaintiffs' counsel to address their legitimate concerns," he said. "If they have concerns that really affect the plaintiffs, then we are willing to listen and make changes in the bill."

Update ...

State To Fight Challenge To Utah Porn Law

KUTV, 12/7/05 - The state is fighting a challenge to a new Utah law that requires Internet service providers to give customers a way to block porn sites.

Attorney General Mark Shurtleff filed a motion in federal court Wednesday to dismiss a lawsuit submitted on Nov. 17 by the "Free Speech Coalition," a trade association for the adult entertainment industry.

The coalition contends the Utah law, which took effect in July, violates the Constitution's guarantee of free speech and unreasonably increases the cost of conducting business across state lines. It also contends the law's definition of objectionable material is too vague to enforce.

Shurtleff contends the First Amendment does not allow pornographers to send materials to parents and children once they have asked not to receive it.

"By challenging our Child Protection Registry, they have proven their real intent to force smut on our children in our homes and schools," Shurtleff said.

The Utah Child Protection Registry allows parents to sign up their children's e-mail addresses to block advertising for pornography, illegal or prescription drugs, alcohol, tobacco, gambling, firearms and fireworks. Registration is free.

If an e-mail address is registered for 30 days, the law forbids sending the address a message that "advertises a product or service that a minor is prohibited by law from purchasing; or ... contains or advertises material that is harmful to minors."

More than 200 senders of potentially offensive material have agreed to comply, according to the state attorney general's office.

Assistant Attorney General Thom Roberts is defending the state against the lawsuit. The registry will continue operating pending a ruling.

Background ...

Controversial Utah porn bill signed into law

3/22/05 - Ignoring threats of litigation from civil rights and free speech advocates, Gov. Jon Huntsman Jr. signed legislation Monday meant to protect children from Internet pornography.

The anti-porn bill sponsored by Highland Republican Rep. John Dougall will require the Attorney General's Office to compile a sort of Internet blacklist of "harmful" Web sites and force Internet service providers to block access to such sites at a customer's request.
The American Civil Liberties Union and Internet industry representatives warn House Bill 260 violates the U.S. Constitution's First Amendment and the Commerce Clause.
The Media Coalition Director David Horowitz warned that Utah taxpayers - like the residents of six other states with similar legislation - could be saddled with legal bills ranging from $100,000 to $1 million.
"When these laws have been found to be unconstitutional - and they universally have - these bills have turned out to be an ACLU funding bill," Horowitz said.
But as is often the case, threats of a lawsuit do not dissuade lawmakers from adopting "morals" legislation such as the porn bill. Utah laws limiting access to abortion were struck down and appealed all the way to the U.S. Supreme Court. And civil rights groups are waiting to see what happens in other states to decide whether they will challenge the state's marriage amendment and a law that blocks gay couples from adopting children.
Citizens Against Pornography's Fraser Bullock defends the bill, written and rewritten in an attempt to eliminate constitutional concerns. "Do we let the companies that sell porn continue to escalate the assault in our homes, or do we fight back?" Bullock asked. "We want to fight back."
American Civil Liberties Union of Utah Director Dani Eyer said the organization is "likely" to challenge the law.
Under legislation that goes into effect immediately, state attorneys will mine the Internet for legal adult Web sites that they determine are harmful to children.
Internet service providers would have the choice of providing filtering software to users or blocking a site themselves. Utah-based companies that build and maintain such sites would be required to label the content "harmful to minors," with violators facing a possible misdemeanor charge.
Besides constitutional concerns, some say the implementation of the bill will create a bureaucratic nightmare - for the state and for Internet providers.
Local Internet providers say the law is redundant - they already provide porn filters for their customers. Still, they acknowledge the law is much better than the original version Dougall started with, which even legislative attorneys warned could be unconstitutional.
"The market has already provided a solution to this problem," said XMission President Pete Ashdown. "I really doubt they're going to do a better job than commercial entities are already doing."

Lawsuit will challenge Utah's new anti-porn law

5/28/05 - Constitutional claims: Plaintiffs say HB260 violates the First Amendment and the Commerce Clause

A coalition of attorneys is drafting a legal assault on Utah's new anti-porn law.
Word of the impending court fight has reached Utah Attorney General Mark Shurtleff, who in response has halted efforts to implement the new law aimed at protecting children from Internet pornography.
"There will be a lawsuit," Shurtleff said. "The ACLU is the one that contacted me and let me know."
Dani Eyer, director of the American Civil Liberties Union of Utah, said her office would withhold comment until the lawsuit is filed in early June.
Shurtleff will wait and see if the court issues a temporary restraining order on the law before he hires an investigator to scour cyberspace in search of objectionable sites.
If a judge hears the case without issuing a restraining order, then "we will probably go ahead," Shurtleff said.
House Bill 260, sponsored by Highland GOP Rep. John Dougall, requires Shurtleff's office to compile a list of sites that appeal to children's "prurient interests in sex." Customers could then demand their Internet service provider to block the sites or to provide filtering software.
Utah companies that create and maintain such pornographic Web sites would have to label the content "harmful to minors." And those who don't comply could face criminal prosecution.
The new law, which includes $250,000 in funding, also creates a new education program to inform parents about the "dangers" found online.
The Attorney General's Office has said the new investigator would work with the Internet Crimes Against Children Task Force, splitting time between creating the pornographic database and hunting down pedophiles. The office has never posted the job.
The expected legal challenge doesn't come as much of a surprise. Lawyers for the Washington-based Center for Democracy & Technology warned lawmakers before House Bill 260 came up for a vote.
The center's attorney, John Morris, is now drafting the suit with the American Civil Liberties Union of Utah and New York City Attorney Michael Bamberger, who has previously represented Penthouse, Playboy and other publishers in similar suits.
They claim Utah's new law violates the First Amendment and the Commerce Clause of the U.S. Constitution.
Since the Internet is global, Utah's law affects legal speech outside of the state, in violation of the Commerce Clause, Morris said. And as to the First Amendment, he said: "There is no practical way for a Web site to ensure a minor will not enter the Web site."
He cites a similar effort in Pennsylvania, where he claims the state blocked 1 million legitimate Web sites to stop access to 400 child pornography sites. Pennsylvania's law was later overturned.
Utah legislators retooled HB260 to avoid the legal pitfalls that Pennsylvania fell into.
But Morris said they didn't do enough.
"All the Legislature really accomplished is forcing the State of Utah to spend money to defend a law that will be overturned."

Group: Utah Web porn law unconstitutional, too broad

6/10/05 - Free speech? The diverse collection of plaintiffs hopes the law's fate will mirror that of similar statutes that courts overturned in other states

America Online and NetZero aren't leading the fight against Utah's new Internet porn law.
Instead, a group of bespectacled independent bookstore owners, a soft-spoken artist and two small Internet service providers are suing to overturn a statute meant to limit children's access to legal adult content on the Web.
Along with them, the American Civil Liberties Union of Utah, the Association of American Publishers, the American Booksellers Association, the Sexual Health Network and the Utah Progressive Network filed a lawsuit Thursday in U.S. District Court challenging the 2005 legislation as unconstitutional.
Utah's new law requires the Attorney General's Office to compile a list of Internet sites that include content that is "harmful to minors." Internet service providers are then required to block access to those sites. Utah companies that operate Web sites that could be considered harmful are required to rate their own sites and regulate children's access. Those who break the law could be charged with crimes ranging from a misdemeanor to a third-degree felony.
The lawsuit claims the statute violates both the First Amendment and the U.S. Constitution's Interstate Commerce Clause. The law "infringes the liberties of the residents of the State of Utah, imposing the restrictive hand of the state to supplant the power and responsibility of parents to control that which may be viewed by their children," the lawsuit states. "It also infringes the liberties of millions of persons outside Utah who are affected by these restrictions."
The plaintiffs say the law - which goes into effect in stages - is so broad it quells their right to free speech.
Betsy Burton, owner of King's English bookstore in Salt Lake City, worries about posting pictures of Margaret Atwood's new novel, Oryx and Crake, which features two nude female torsos joined as one on the cover. Is Vladimir Nabokov's Lolita harmful to children? What about D.H. Lawrence's Lady Chatterley's Lover?
Burton is afraid her bookstore's Web site could run afoul of Attorney General Mark Shurtleff and the attorneys whose full-time jobs will include mining the Internet for prohibited Web sites. If the King's English site is blocked, Burton said, she has no way to appeal the decision.
"We sell books covering a variety of topics, some of which [have] sexual content," she said. "These and other books we carry, when recommended online, could be described in ways that depict nudity and/or sexual conduct. There is no practical way we can know when a minor is on our Web site or what he or she is looking at."
Calls requesting comment from the bill's sponsor, Highland Republican Rep. John Dougall, were not returned. Shurtleff spokesman Paul Murphy said state attorneys are still reviewing the lawsuit. Dougall's bill set aside $250,000 to pay for an education program and to hire two attorneys to mine the Web. Murphy says those attorneys have not yet been hired and may not be until after the lawsuit is resolved.
"Everybody's trying to consider what would be the most appropriate way to go forward," Murphy said.
Meantime, artist Nathan Lawrence worries his nude paintings could eventually land his Web site on the state's list. And Sam Weller's Zion Bookstore owner Tony Weller wonders if the anti-Mormon, political and erotic literature available on his shelves will lead Internet service providers to block access to the store's Web site.
"There are a lot of books that are 'harmful to minors.' And they're not all about sex," Weller said.

ACLU of Utah attorney Margaret Plane says Utah business owners are legitimately concerned about being charged as criminals for violating the law.
For larger Internet service providers, the law is equally cumbersome and costly, according to John Morris, attorney for the Center for Democracy and Technology, a provider advocacy group.
Because Web sites are bunched on servers, Internet service providers would have to block all the sites on an individual server in order to stop access to one porn site - potentially eliminating access to thousands of innocent Web sites. Trying to target individual Web sites is "prohibitively expensive" and actually slows the Internet down, Morris said.
Utah Progressive Network and Salt Lake City attorney Andrew McCullough, who ran against Shurtleff last year, are plaintiffs in the lawsuit because their Web sites are parked on a server along with adult sites and likely could be blocked by ISPs trying to comply with Utah's law.
Morris said Utah lawmakers should have left the decision up to parents to buy filtering software on their own.
"There are alternatives to the Utah law that don't impinge on free speech," Morris said.
Other states have adopted similar laws - Pennsylvania, Vermont, South Carolina and New Mexico among them - that ultimately were overturned by the courts. Attorney Michael Bamberger, who represents the Media Coalition and successfully sued New Mexico, hopes the judge in this case, U.S. District Judge Ted Stewart, carefully reviews the 1999 ruling from the 10th Circuit Court of Appeals in Denver to avoid a lengthy and expensive court battle for state taxpayers. Utah, he says, has not come up with a "better mousetrap."
"There is nothing in the Utah law that makes it any different," Bamberger said.

Utah's new porn law:

Requires the Utah Attorney General's Office to compile an Adult Content Registry of thousands of legal adult Web sites that could be "harmful" to minors.

At a customer's request, Internet service providers would have to block those sites or provide blocking software to users.

Utah-based Web content companies that build adult sites would have to label them "harmful to minors."

Those who don't comply could be charged criminally.

Challenge:

A lawsuit filed Thursday charges that the law violates the U.S. Constitution's First Amendment and Commerce Clause. The law "infringes the liberties of the residents of the State of Utah, imposing the restrictive hand of the state to supplant the power and responsibility of parents to control that which may be viewed by their children," the lawsuit states. "It also infringes the liberties of millions of persons outside Utah who are affected by these restrictions."

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Porn Studies > Porn in the News

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