Free Speech Coalition Officially Appeals Utah Lawsuit Dismissal

DENVER—After a federal district judge dismissed a lawsuit challenging Utah Senate Bill 287, a plaintiff class led by adult entertainment websites and other members of the industry have filed a notice of appeal to the U.S. Court of Appeals for the Tenth Circuit to rehear the suit. Adult industry advocacy organization the Free Speech Coalition (FSC) is the lead plaintiff in the case against the administration of socially-conservative Republican Gov. Spencer Cox, asking a federal court to issue an injunction blocking the implementation of the law in question, which mandates the age verification of all users looking to access an adult website, such as an adult tube site or a paysite. Violators are subject to private enforcement actions brought against companies as a form of law enforcement rather than the regulations being implemented by a state attorney general or public prosecutor. AVN reported recently that Senate Bill 287 is structured as a so-called “bounty law.”  The term “bounty law,” in this particular context, refers to one that leaves its enforcement to private parties filing lawsuits against supposed violators. These lawsuits could be filed by bad actors seeking to abuse the law for their own means. In the above-mentioned report, several attorneys and activists raised their alarm about bounty laws and how lumping age verification and the anti-porn movement together could embolden the censorship of speech that the First Amendment otherwise protects. MindGeek, the parent company of Pornhub, withdrew from the Utah online pornography market due to Senate Bill 287 being a “bounty law.”  This was the focus of the lawsuit when the FSC initially filed it in May.  Counsel for the trade group and a class of other plaintiffs—like the parent company for JustForFans and sexual education website O.School—said that Senate Bill 287 infringes on the online adult entertainment industry’s constitutional rights under the First and Fourteenth Amendments. However, the federal judge in the case said that the plaintiffs could not name state officials, like the attorney general of Utah, Sean Reyes, if the law prohibits state officials from enforcing it. In the judge’s ruling on dismissing the suit, he references a controversial U.S. Supreme Court case that found officials for the state of Texas could not be sued when it comes to challenging the controversial Senate Bill 8, which took effect in 2021. This law prohibited abortion after six weeks in Texas and was additionally structured as a bounty law allowing private citizens the right to sue individuals who they suspect are guilty of aiding and abetting the administration of abortion procedures. In a statement published on August 1, FSC executive director Alison Boden announced that the organization would appeal the district court’s dismissal of its suit challenging Utah's age verification law. “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,” said Boden. “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 acknowledgment of the constitutional concerns raised by the law and look forward to arguing our case at the appellate level.” If the notice to appeal is granted, a panel of three judges will consider whether the district judge was justified in dismissing the suit.