(CN) — A Tenth Circuit panel heard arguments Wednesday on whether a federal judge correctly dismissed a challenge to Utah’s requirement for age verification on pornographic websites.
The appeal led by the Free Speech Coalition seeks to revive its constitutional claims against Utah’s Senate Bill 287, a law passed in 2023 that creates “obligations and liabilities for a commercial entity that provides pornography or other materials harmful to minors.”
Under the law, website owners must verify the age of their viewers through a digital identification card or an independent third party capable of comparing a user’s personal information to an identity database. How websites go about verifying their users’ age is not legislatively prescribed and has since caused some websites like Pornhub to block their content in Utah.
While passing SB 287, lawmakers from Utah’s Republican-led Legislature argued that pornography is too readily accessible and threatens the well-being of developing children. The bill’s chief sponsor, Republican state Senator Todd Weiler, also supported the state's declaration of pornography as a public health crisis in 2016 — a move that inspired a dozen other states to enact similar legislation. It also lead to another Utah law in 2021 requiring porn filters on cellphones and tablets.
In May 2023, the coalition joined an unnamed attorney, two online writers and Deep Connection Technologies — an online sex education platform — in suing Utah Department of Public Safety Commissioner Jess Anderson and Utah Attorney General Sean Reyes.
“The act violates the First Amendment in several respects,” the plaintiffs say in the complaint, claiming it imposes a content-based restriction on protected speech, unconstitutionally labels and stigmatizes websites as adult businesses and requires an approval process as a condition to providing protected expression.
The plaintiffs also claim the law violates the 14th Amendment while burdening interstate commerce by “restricting the ability of providers of online content to communicate with Utah residents.” But the merits of the plaintiffs’ constitutional concerns never saw the light of day.
SB 287 gives Utah residents the authority to sue entities and collect damages for noncompliance with the law. This removed the burden of enforcement from state officials and prompted U.S. District Court Ted Stewart to dismiss the coalition’s lawsuit against Anderson and Reyes this past August.
To invoke the Ex parte Young exception to 11th Amendment immunity — which allows parties to enjoin state officials from violating federal law — a state official must have a connection with the enforcement of a challenged statute. Since Utah’s online verification process is not currently operative and Reyes has no particular duty to enforce the law, Stewart reasoned that neither claim against the officials could proceed.
“It may be of little succor to plaintiffs, but any commercial entity sued under SB 287 ‘may pursue state and federal constitutional arguments in his or her defense,’ they just cannot receive a pre-enforcement injunction against the two named defendants,” Stewart wrote in his order.
On Wednesday, coalition attorney Jeffrey Sandman of Webb Daniel Friedlander LLP argued that Stewart made three critical errors when dismissing the plaintiffs' constitutional claims. One of those errors, he said, included a misinterpretation of Whole Woman's Health v. Jackson — a 2021 U.S. Supreme Court case that upheld the Texas Heartbeat Act to allow citizens to sue abortion providers — thus denying a form of relief that the plaintiffs never requested.
Sandman argued Utah’s age verification law is unlike Texas’ abortion ban because the Texas statute expressly denies its attorney general of the duty of defending the act’s constitutionality and Texas officials of enforcing the law. The attorney said that Reyes could, in fact, enforce Utah’s new law because he has the duty to opine on questions of law in a supervisory capacity for the benefit of the Legislature or the executive branch.
“The Kitchen v. Herbert case says this very thing,” Sandman said in reference to the 2014 case that overturned Utah’s ban on allowing and recognizing same-sex marriages.
Representing Reyes, attorney Sarah Goldberg argued that Reyes’ general duty to enforce state law is not enough to satisfy standards under Ex parte Young and that a “myriad number of cases” support that conclusion. Goldberg also argued that the attorney general’s standing to intervene in a lawsuit is wholly dependent on the case’s private parties, meaning he has no prerogative to continue a lawsuit if the private parties dropped their suit.
As for the coalition’s request to bar Anderson from providing data for age verification, Goldberg said it would do nothing to redress their claims of how the act is unconstitutional.
“In their brief, they asked for an order requiring the commissioner to create a workable digital ID card that will allow compliance with the act,” Goldberg said. “But again, this doesn’t get rid of the reasonable age verification requirements. And it’s also not what they asked for in their complaints.”
Goldberg also noted the plaintiffs’ complaint does not outline anything Anderson did and only that the act is unconstitutional. Sandman pushed back on these points by arguing that a digital ID “provides a veneer of constitutionality absent which there is no state channel by which to vindicate First Amendment rights.”
The decision to affirm or remand Stewart’s dismissal now lies with U.S. Circuit Judges Gregory Alan Phillips and Nancy Louise Moritz — both Barack Obama appointees — and U.S. Circuit Judge Allison Hartwell Eid, a Donald Trump appointee. They did not indicate how they would rule.
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