Court Dismisses Challenge to Utah Age-Verification Law; FSC to Appeal

The statute being challenged, SB 287 (hereafter “the Act”), created a private right of action by which citizens of Utah are empowered to enforce the Act. Under the Act, any commercial entity that is found to have violated the law “shall be liable to an individual for damages resulting from a minor’s accessing the material, including court costs and reasonable attorney fees as ordered by the court.”

In his order, Stewart noted that the Eleventh Amendment states the “Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.”

Citing Johns v. Stewart, the judge observed the “‘Eleventh Amendment has been interpreted to bar a suit by a citizen against the citizen’s own State in Federal Court.’ It also extends to ‘suit[s] against a state official in his or her official capacity’ because such suits are ‘no different from a suit against the State itself.’ However, under the Ex parte Young exception to Eleventh Amendment immunity, a plaintiff

may bring suit to prospectively enjoin state officials from violating federal law.”

The problem for FSC and the other plaintiffs in this case, Stewart wrote, is none of the Utah officials named in the complaint fit within the Ex parte Young exception.

“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,” Stewart wrote. “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.”

Stewart held that the plaintiffs’ claims against Utah Public Health Commissioner Jess Anderson fail for the same reason.

“The Tenth Circuit has made clear that under the Ex parte Young exception, the state official must ‘have a particular duty to ‘enforce’ the statute in question and a demonstrated willingness to exercise that duty,’” Stewart noted. “Commissioner Anderson has no ability to enforce S.B. 287. Rather, as Plaintiffs admit, that provision provides for a private right of action.”

Even as he dismissed the case, Stewart recognized some of the plaintiffs’ concerns about the law – but held that this case simply wasn’t the means to address those concerns.

“The Court acknowledges Plaintiffs’ concerns about the propriety of the legislature outsourcing the enforcement of laws that raise important constitutional questions,” Stewart wrote. “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.”

In a statement published yesterday, FSC said it will appeal Stewart’s decision.

“Utah is attempting to duck responsibility for a dangerous law passed by its own legislature, but make no mistake — the law is unconstitutional,” FSC Executive Director Alison Boden said in the statement. “As we’ve seen with Don’t Say Gay, the Texas Heartbeat Act and other attacks on free speech, states are attempting to do an end-run around the First Amendment by outsourcing censorship to citizens. It’s a new mechanism, but a deeply flawed one. Government attempts to chill speech, no matter the method, are prohibited by the Constitution and decades of legal precedent.

“Fighting this as a pre-enforcement challenge — rather than waiting for a case to be brought against one of FSC’s members — was always going to be an uphill battle,” Boden continued. “But, given the chilling effect of this law, it’s a necessary one. While Utah was able to temporarily slow FSC’s challenge, we are encouraged by the Court’s acknowledgement of the constitutional concerns raised by the law, and look forward to arguing our case at the appellate level. As the Supreme Court has established, the government can not, and should not, wall off the internet when less restrictive options for protecting minors exist.”