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US Federal Court dismisses constitutional challenge to Utah’s Law requiring AV for adult websites

August 2, 2023

Round One in the constitutional fight in the USA on age verification has been won in Utah by those who wish to prevent children being exposed to adult content online.

The Judge dismissed the case because the state plays no part in the enforcement of S.B. 287.  The Bill creates a private right of action which allows a citizen to sue an adult website for failure to apply age verification.  The state is not directly involved.

In sum, Plaintiffs point only to the Attorney General’s generalized responsibilities to enforce the laws of the state and provide written opinions to the legislature. Such general enforcement powers are not sufficient to establish the connection needed to invoke the Ex parte Young exception to Eleventh Amendment immunity. Plaintiffs have failed to demonstrate that the Attorney General has a particular duty to enforce S.B. 287 or that he has demonstrated a willingness to exercise that duty. Therefore, Plaintiffs’ claims against the Utah Attorney General must be dismissed.

Even the indirect role the state plays in providing a mobile Driving License to be used as one method of proof of age, is not deemed “ripe” to bring the state into the jurisdiction of the court, because (a) it is not currently offering online AV and (b) the Commissioner of Public Safety who runs mDL would not gain enforcement powers for the Bill when it does.

There is a glimmer of hope for the plaintiffs in the judge’s conclusion where he states that constitutional arguments can be made in court when defending claims under the Act later down the road:

The Court acknowledges Plaintiffs’ concerns about the propriety of the legislature outsourcing the enforcement of laws that raise important constitutional questions. The wisdom of such policy decisions is best left to the other branches of government. It may be of little succor to Plaintiffs, but any commercial entity sued under S.B. 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.

This judgement may have an impact in other states where a private right of action is proposed.  That includes Louisiana, where this Bill’s text originated – except a further law has given the Attorney-General powers there to enforce the law, so that may undermine this line of argument.

It may also apply in Arkansas where there is no role for the state in applying their social media law.

It is very unlikely to help in California where the state in directly responsible for enforcing their Age Appropriate Design Code Act.

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